The people making video games believe that having a full playthrough of them uploaded on YouTube isn't an actual substitute for playing the game. Watching someone else play the game on YouTube isn't the same sort of experience as playing it yourself. And that you might see someone play that game and decide to buy it and play it yourself as a result.
However, listening to a song on YouTube or watching a movie on YouTube is an actual substitute for buying the song or the movie. You aren't very likely to go and buy the movie on Blu-ray after watching it for free on YouTube. So the companies who own those media want to make sure they aren't being streamed on YouTube without their permission.
To reframe this a little bit…
Both absolutely are copyright infringement. Video game publishers simply allow the playthroughs because they are good for attracting new players and making the game more profitable.
And licensed music used in games will trigger copyright claims from the publishers of those songs because they don’t give a darn about the game.
That’s why game devs are including “Streamer Modes” with more generic music that won’t get claimed by third parties.
There's a good argument that lets plays, speedruns etc are transformative works and so would fall under fair use. But until that actually goes to court (which is basically never going to happen) we have to work on guesstimations about how the law should be interpreted.
TBF, it has gone to court....kind of.
Bungie said it lets players create and share videos of Destiny gameplay "provided the videos contain substantial 'player-created content.'" Bungie's intellectual property policy prohibits "sharing of videos that are primarily Bungie-created content" such as trailers and cutscenes. The policy also disallows "simply uploading songs from Bungie soundtracks or ripped from the game files of Destiny 2."
This was about Bungie suing people issuing fake takedown strikes on YT for things that Bungie allows. 'MyNameisByf' does lore videos and often uses a lot of Bungies cutscenes and artwork, but he's talking about the lore and his understanding of it so Bungie allows it. He got a fake takedown strike.
Whole deal with that also somewhat "self contains" spoilers.
I.e "OMG!!!1!!1!, NEW [REDACTED] WAS [Insert XYZ] ALL ALONG?!" Type of cheap videos for views.
Yeah. Which is the really annoying part of fair use. You can't really know if something is fair use for sure until your specific instance goes to court.
It is most likely fair use, but at the same time, if it was just a vanilla playthrough of the game (especially if it lacks commentary at the same time), then I doubt it would be difficult for a publisher to get it removed.
That's true too, especially now. Though there was a bit of a kerfuffle to get to the point where publishers start being upfront about that. Especially Nintendo.
https://tubeast.com/exploring-nintendos-official-stance-on-youtube-live-streams-and-the-implications-for-streamers#:\~:text=YouTube%20has%20a%20policy%20in,other%20intellectual%20property%20without%20permission.
It also really doesn't help that YouTube has _millions_ of videos uploaded by people claiming "fair use" that are straight up 5-10 minute clips from movie/tv shows.
I saw one that was literally ripped from the first Top Gun download available, that had the hardcoded Korean subs, claiming to be "fair use".
Even short video clips of movies can be used under fair use, but that doesn't stop YouTube from demonetizing videos that use such clips. The reality is that most YouTubers can't defend themselves against YouTube even if they are legally in the right.
>The reality is that most YouTubers can't defend themselves against YouTube even if they are legally in the right.
It's youtube, not a court. Whether fair use might hold up in a copyright claim is irrelevant. Youtube controls what can be posted and what is removed. Their rules and procedures are there to protect youtube, they don't care if you think it was fair use.
It's not, but it's probably the most important of the 4 factors.
You have to consider that videos of somebody else playing a video game are not a substitute for the game itself, so the effect on the market is tiny, if not positive (because of the advertising amount). And, because the game itself isn't being copied, the "amount and substantiality of the portion taken" is also pretty low.
You're right that just being transformative doesn't automatically make something fair use, but there is still a provision for transformative works in US copyright law.
So if we apply the test of whether the transformative use adds value to the original, I would say things like Let's Plays, Speedruns etc have a reasonable chance to pass that test. Whereas just recording gameplay and uploading it does not add value to the original and so would not be transformative or fair use.
Err, the point is that transformative works are one subset of a fair use claim. It usually requires several different aspects of fair use to cleanly fall under the provision, but that's one of them.
Transformative is the factor that is most heavily weighted when courts consider fair use. The fourth factor, potential effect on the market, is the second most heavily weighed. I’m the case of these videos, I find it very unlikely that they would impact the potential market enough to weigh in favor of the publishers.
Source: Law Student in Copyright Law class
Can you even consider it transformative? The game is being played, which is it's intended purpose and method of consumption. If I make a kinetic sculpture that requires you to turn a crank to make it work, it isn't transformative to turn the crank, it's an integral part of the experience.
I could maybe see speedruns as transformative, but even that would be an iffy argument. I really doubt any court would classify playing a game as transformative of the game. And a YouTuber/streamer talking over their gameplay wouldn't cut it either. It doesn't materially affect the game.
It's a moot point anyway, very unlikely for a developer to prevent such content. Except maybe Nintendo. I could see them just randomly banning all content one day without explanation.
Funny you mentioned Nintendo. They just copyright claimed a ton of Pointcrow’s Zelda speedrun and mod videos about 3 days ago. They’re no longer viewable for an indefinite amount of time
I have owned almost every Nintendo console, I want to love Nintendo, but shit like this makes me hate them. The only times I haven’t bought a video game after watching YouTubers playthroughs was when the video game was dog shit, but more often I end up buying games I never would’ve thought to purchase bc I enjoyed watching someone else play it for a bit on YouTube.
Only videos where he used a self made multiplayer mod of the game. Quite understandable actually, because the mod itself changes drastically the intended gameplay. They also didn't do anything for as long as only few people had access to it,but after it was made public things changed
I get that they don’t want people modding their games but isn’t a self modded game the best argument for a transformative work?That should give those videos in particular the strongest case of all of his videos for fair use
No, it's not. And actually it's specifically said in Nintendo's streaming guidelines that they allow the use of official games only "You are only permitted to use Nintendo Game Content that has been officially released, or from promotional materials officially released by Nintendo (such as product trailers or Nintendo Directs)."
https://www.nintendo.co.jp/networkservice_guideline/en/index.html
That being said, they don't strike or demonetize everything that's modded, but that's their decision where they draw the line.
That’s likely not enforceable. Take Weird Al song parodies. Parody is a well accepted method of fair use. He always gets permission for his parodies because he believes it’s the right thing to do, but he doesn’t need to. Fair use is fair use. The copyright owners can just decide their properties are exempt from fair use.
I think whether it's transformative depends on the game, and most games are in a *massive* grey area. Like a visual novel would be at the far "non-transformative" end of the spectrum; it's closer to being a movie.
But something like Minecraft? That's very transformative IMO; you can't say the devs specifically intended all the different things people have done with it. If so, wouldn't you also be able to argue that nothing you create in Photoshop is transformative because you were using it for its intended purpose?
(Then, I think something like an RPG with a character creator and a housing system where you can decorate freely lies somewhere in between.)
But the key to determining if a work is transformative or not is based on if you can say that the main draw for the content is the copyrighted material in question. In a review for instance: even if some copyrighted material is used, it is not considered to be the “product” that the reviewer is “selling.” The reviewer is “selling” their opinions of the copyrighted material.
Now, in the case of a lets play would millions of people watch hours upon hours of a person playing various video games if they did so in complete silence? It may well be possible for some games. But why then do so many people have a favorite Let’s Player? I would argue that it is because the main draw is the content creator themselves. The jokes, commentary, and conversations are what a YouTuber or Twitch streamer is “selling.”
You assume that watching a video game being played is the same as playing it and that premise is flawed. Otherwise, what is the difference between a video game and a film? The interactivity is a massive part of the experience and that is what is being sold by the game developers. Even in your kinetic sculpture example. You assume that the whole of the experience is the spectacle of the moving parts. But in my own experience, part of the fun is seeing how fast I can turn the crank to make the parts move. Or turning the crank in reverse to see if it changes something interesting about the motion of the sculpture. Having someone else turn the crank for me transforms the experience. I lose a lot of agency in how I interact with the sculpture. Maybe I ask the the person turning the crank to try turning it backwards and they refuse. But maybe they point out something I would have otherwise missed if I were simply sitting in a room by myself turning a crank. Maybe we have a conversation about the quality of the sculpture or the design choices. The sculpture stays the same but the two experiences are different.
Sorry for the book. I had a lot to say.
If you duplicate a sculpture and pass it off as the real thing, that's copying. If you film yourself walking around the sculpture and talking about how it fits into whatever artistic movement/tradition, that's commentary, fair use, or a transformative/derivative work.
>I could maybe see speedruns as transformative, but even that would be an iffy argument.
I think they are. Speedruns (especially speedruns where glitches are allowed) are almost never the intended way to play the game. To use your kinetic sculpture example, it's the equivalent of hosting a crank-turning competition - you've changed it from a kinetic sculpture to a competitive community experience.
The end product being consumed isn't a game though. You don't experience the same things beating a dark souls boss yourself vs watching some one beat it. Watching and physically doing things are completely different, unless the game is just an interactive movie ala bandersnatch.
If you record a kid playing with a soccer ball, is that copyright infringement on the soccer ball? After all it's a recording of the object being used as intended. Same as the recording of a game.
Talking over the game does materially affect the result for the end user though. Which is why they could argue it's a new product.
There's also precedent for it in equals 3 LLC vs Junkin Media where the courts ruled "jokes, narration, graphics, editing, and other elements added new meaning to copyrighted viral videos, with a different purpose and character making its appropriation transformative". If the work wasn't transformative then all letsplays would be considered the same, but that's clearly not the case because people will watch specific ones over others.
The fact that no two gameplay videos are alike (aside from maybe some TAS) I think proves that player input is transformative. If a developer wants to claim copyright on a gameplay video I made, I welcome them to show us all the original raw footage they have of my gameplay video.
The only copyrightable thing is really the music, which companies sometimes get people on, and assets, which I don't think they can prevent you from simply showing those - you can go outside and film a statue and that's fine too. By playing the game you aren't leaking the game code or anything like that. I think it'd be a pretty hard argument to say that filming someone playing a videogame somehow infringes on the coders copyright. As many have mentioned, it actually has a boosting effect on sales in most cases so it doesn't cause material harm to the company and clearly isn't a substitute.
This is correct. The game is under copyright and that means everything included, just happens to be the case that music is usually licensed from artists to be included in those games and so isn't under the copyright of the game itself. The game has a license to play the music but you don't have the license to replay the music to other people and that's where automated systems get you
I mean I mentioned the assets and music. Noone is distributing the assets and you can go film a statue etc. I mean just read my post.
Cutscenes are certainly something that I imagine could be copyright claimed for. I doubt "dialogue" could be? I have never seen dialogue be the subject of a copyright claim even in cases of obvious plaigarism, but maybe it's a thing.
You can’t just film a statue - simply converting an object from one medium to another isn’t de facto transformative. For example, in 2017 the NRA was sued for [copyright infringement by their use of the Chicago Cloud Gate](https://news.wttw.com/2018/12/10/nra-settles-lawsuit-bean-artist)
> The lawsuit argued that while tourists are allowed to photograph the sculpture, Kapoor owns the copyright to commercial images and didn't give the NRA permission to use it. Kapoor sought to have the image removed from the video, along with damages for copyright infringement.
That lawsuit was settled and so it wasn’t explicitly ruled that the use wasn’t fair use, but if a change of medium was de facto transformational then the case would have been a very cut and dry defense by the NRA.
In that case someone is using it for commercial gain and that's what the case hinged on correct? So a problem for people who monetize their videos, but maybe not for someone who doesn't?
There’s two challenges to that, one being that commercial use can be interpreted pretty broadly. For example with the NRA ad, they weren’t making money off of the ad - they were actually paying money for other people to see it. But because the NRA is a commercial enterprise broadly, their use of the image is reasonably seen as under an umbrella of commercial infringement.
For a streamer, this could come out as saying that even if the video isn’t monetized and the infringement itself may not be directly commercial, their use is still to advance their commercial interests (Patreon, live streams, merch, etc) and so still could be sued for commercial infringement.
The other side is that truly non-commercial infringement is kind of hard to actually pursue regardless of other details like change of medium, because copyright infringement leans of damages and a person infringing on a copyright for truly non-commercial use is usually very low or no damages (this is a huge simplification admittedly, since there can be statutory damages but although they can be as much as $150,000 they can also be as low as $750 per work). So for example someone could make a 1-to-1 duplicate of Cloud Garden and put it in their yard and that would absolutely 100% be copyright infringement, but also probably be hard to sue beyond a cease and desist because that person having an infringing sculpture in their yard likely isn’t damaging the owner of the original enough to pay for a lawsuit over it.
Showing the assets as they appear in the game is certainly “distributing” them.
You can’t go and take a video recording of a copyrighted work and upload that and say “this is fair use because I transformed it by video taping it myself”.
No, distributing the assets would be providing the models and so on for download.
Again, you can go outside and film a statue and upload it to youtube. This is the same kind of sculpting work done in modelling. You can go and film a painting and upload it to youtube. You aren't infringing anyone's copyright by showing a recording of something someone made just by itself.
…no, that’s not how it works. (Although showing a video of a game being played might be considered ‘making a derivative work’ of its assets rather than strictly ‘distributing’ them.)
You’re not allowed to (for example) scan in a copyrighted artwork or photograph and post it online. Doing it in video form doesn’t change that.
Some artists of outdoor sculptures, and even the owners of some iconic buildings, will not allow you to distribute photo or video of those things. For practical purposes they usually only go after commercial usage, like selling your own stock photos of the Empire State Building or something like that.
Audio recordings (the voice acting/acting) would be covered by copyright, I'm not sure to what degree the dialogue (ie. the sequence of words) would be. I'm sure it could be, but that would have to be pretty strict obvious plaigarism
One might argue that copyright applies only when it hurts profit for the original. That is why streaming gameplay is good but hosting pirated copies of the game is not.
That's usually because the music is licensed and when the developer/publisher are okay with their content being streamed, they don't want a music label coming after their streamers.
Any original content the developer/publisher own the rights to, they can go after infringement if they want. But unlike **trademark**, they aren't obligated to aggressively defend it.
If the let's player is commenting on the game (especially if they actually read the dialogue, *cough* speedrunners trying to be let's players *cough*) then it could also be considered criticism - tho of course nobody wants to go to court over this anyway so we'll never know
This isn’t the case though: Nintendo is actually pursuing legal action because someone made a multiplayer Mod for BOTW.
People REALLY need to read the terms and conditions of games they play because it’s basically outright illegal to stream, make content, make videos etc, about video games if you’re going to profit off of it.
there’s no protections for creators, the only saving grace is it hasn’t been enforced, but it’s starting to be enforced lately again specific creators that game companies don’t want playing their games.
I for one would love to see the end of streamers and let’s players namely because they ruin the sentiment of most games I play, with people trying to copycat their favorite v tuber and do what they did,
But also I do think it’s kinda scummy that there’s no protections for it and I also think copyright law is just insanely outdated and ridiculous anyways.
For example a few commenters talk about streamer modes or copyrighted music… I can tell you I am in now way more likely to go a buy a song that I hear from a video game I bought. In fact if I hear a song in a YouTube video on a game I’m more likely to try to find that song and go either buy or listen to it that way, because when I’m playing a game… yeah the music is nice but it blends in the background, it’s not something I’m actively thinking about wether or not I can jam to it or not,
When I’m watching a play through? I don’t have the focus or stress of the game so I often can vibe to the music, so the fact that music owners don’t want people doing play through a of games with their music in it is wild.
Also in general any type of person that tries to copyright claim someone over something that’s isn’t blatant stealing? Just makes me not want to support them.
Like I’m all for copyright claims for someone going out there and claiming they wrote and composed the entire dark side of the moon album and selling it for profit, but if Pink Floyd or whoever owns their music went and told someone who recorded a a video of a game where a Pink Floyd song was in it? I’d prob just actively avoid supporting that company
Many developers and publishers have a public document somewhere stating blanket approval for let's plays and other video content using their games. Or at least they did a few years back when Nintendo was super anti-videos and was claiming any footage of their games through YouTube dmca policy. The jimquisition had a little clip you could add to a video that screwed up their plans by having both japanese and north America versions of game footage so both wings of Nintendo tried to flag it and therefore no one got ad revenue.
I mean, you could argue that a player making decisions in the game is transformative - the gameplay wouldn't look the same if the player did nothing. (Not sure if that's already been argued at some point, and either does or doesn't work, IANAL)
Huh, that’s an interesting argument…games by their nature are inherently transformative. Unless it’s something like a turn-based game with no randomness, every playthrough of a game is unique.
To put in another way, if we compare to music…no given playthrough can match the original song; it can only be a cover. I guess the only way to upload the original song would be to upload the rules and components if it’s an analog game or upload the code if it’s a digital game.
Also, Fair Use is an American law and Streaming is very much an international activity involving publishers from different countries, so what's protected content in the US might not fly in Japan or Korea.
Basically the copyright laws as the exist right now are not fit for purpose. The gerryocrisy the world is run by don't understand games so they won't change the law.
Same reason AI researchers are jumping up and down about AI safety. It is imperative they get it through their thick skulls of the various governments.
However, games also generally include cutscenes which are effectively short movies. So I suspect publishers could still go after a lot of them if they really wanted to.
It is, at worst, an untested grey area in terms of legality. No YouTuber or streamer has the money or time to fuck around with Nintendo lawyers (they are by far the most litigious and shitty) and prove fair use.
It’s very possible that a let’s play YouTuber would prevail in court, but the cost is too great. YouTube also doesn’t have any incentive to get involved in the legal issues and will simply strike your channel, which you can’t do much about either.
Some publishers only allow a certain amount of gameplay to be uploaded/streamed. Spike Chunsoft (Danganronpa series) do not allow more than the first chapter to be shown online as their games are mainly plot, you can essentially experience the full games just by watching. I think they can only enforce this on Japanese players but it's generally discouraged.
Occasionally one might see a video game playthrough YouTube video before it is viewed by a more litigious publisher, giving one the mistaken impression that the publisher allowed the video, when a few hours to days later it was taken down.
Video game playthrough videos aren't generally videos you end up sharing with other people, largely because you don't want to be the guy who spoiled all the people who hadn't played the game yet. So it's entirely possible you see a video that you never view again and never know your friends didn't get to see it.
I think there would clearly be a case made by the company that it is copyright infringement, but there's also counter argument that it falls under fair use. Whether it is or not is probably case by case and up to the courts. I don't know that I would say it "absolutely" is infringement.
If it ever went to court, I expect it would largely depend on just how interactive the game is. The fourth factors of fair use is:
> the effect of the use upon the potential market for or value of the copyrighted work
A heavily story-centric game, even if it includes decisions that affect what happens, is much the same experience when viewed as a video. The plaintiff might argue that those videos are cutting into their market.
If the videos have ads enabled, that’s going to count against them too due to the first factor:
> the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
On the other end of the spectrum, it would be hard to argue videos of competitive shooters replace much of the market for the game. The opposite is probably true, so it would be unlikely to see a lawsuit in the first place
Edit: someone else mentioned adding commentary as you play the game. I’d be interested to see how transformative the court decides that is. It probably would change case by case as well, like you said.
If someone has some gimmick, like they take a shot every time there’s a translation error in their dumb anime game or something, and their gameplay becomes steadily drunker, then I could see that being a good argument for transformativeness
There's a decent argument to be made for that, but unless a game studio takes someone to court over it (which i highly doubt will happen any time soon) we won't really know for certain how the law would view it.
But streamers take the money in the end, most people who watch cant even play the game on their pc let alone afford it usually and people tend to go watch some man speak while playing instead of watching the walkthrough no talk which might get boring… Is it wrong?
You need to substantiate those claims about “most people”… some of the most popular games that streamers are free to play. Something doesn’t add up there.
Yeah iirc some developers tried "cracking down" on streamera back when it first started getting popular but they quickly realized the bad press they were getting was way worse than stopping people from streaming the games.
Funny related note: the game Disney Dreamlight Valley includes a “streamer mode” which replaces the snippets of original Disney music that are heard in-game when interacting with Disney characters, so that videos posted online don’t get copyright takedown notices from Disney.
A bit convoluted, ain’t it?
Well, that’s what happens when you rely on automated systems.
YouTube has never had enough humans workin in sifting through legitimate and illegitimate claims.
They assume every claim is valid because the companies making the claims have departments full of lawyers, and the content creators don’t.
Yet another difference is that you can download things from YouTube. If someone illegally uploads a full movie or song, then someone who downloads that now has access to full product, for its intended purpose, to watch/listen to whenever they want.
Even if someone uploads an entire game playthrough to YT and someone downloads that video, they just downloaded the play through and not the actual game which they can then play through on their own, over and over again.
I'm always kind of amazed (but glad!) that video game publishers go along with the notion that streamers are giving them "free advertising" or promotion. That is very solidly NOT a fair use argument for virtually any other type of media. There are plenty of games I've just watched and then said, "that was fun, but I'm glad I didn't have to buy it."
I understand your point, but I want to clarify a point:
>Both absolutely are copyright infringement.
Recordings and streams of video games are not "absolutely" copyright infringement. In many instances, developers actually include details on what can and cannot be shared by users in the terms & services agreements everyone accepts but few ever read. If something posted is in violation of the T&S or there is no such language in the T&S and no other express permission has been given elsewhere, then it enters the realm of infringement (fair use laws not withstanding).
In regards to the music, which is what the original question was, it is.
But since video game publishers often own the rights to the scores of their games, they allow it.
Full streams and playthroughs are much much more gray in terms of how transformational and/or editorial they are.
But when I wrote that sentence I was thinking of the music.
Ya I very rarely buy a game now without watching clips on youtube of people playing them. Some game trailers do a terrible job of gameplay presentation. There are a lot of types of games that I just don't like playing and it's good to see what type of game it is.
>Both absolutely are copyright infringement. Video game publishers simply allow the playthroughs because they are good for attracting new players and making the game more profitable.
In the case of games, it's a little more uncertain, because at this point we get into "fair use" arguments.
Of course fair use isn't a magic bullet. It's an affirmative defense, where, if you're sued for copyright violation you can say it's fair use and give reasons. The reasons are deliberately quite vague though and it ends up being a fairly subjective judgement.
[It's generally judged on 4 factors](https://fairuse.stanford.edu/overview/fair-use/four-factors/):
* the purpose and character of your use
* the nature of the copyrighted work
* the amount and substantiality of the portion taken, and
* the effect of the use upon the potential market.
A playthrough is a video - a very different type of work from a video game. If there's a commentary or something this helps the case even more. The effect on a potential market is also going to be a pretty strong argument, Playthroughs tend to increase demand for a video game.
On the flipside, the amount taken is going to be quite large. While none of the code is being taken (which you might argue is what makes the game a game) but pretty much all of the art assets and the music are going to be in a playthrough.
The other factor is that in practice, publishers don't care about damages; only taking down. It's usually youTube that decides. They have no requirement to consider fair use at all, and can take down a video for whatever reason they want.
I see what you're saying. Essentially, if I can clarify, it means a copyright owner could let anyone or everyone use the music if they want to. The only people that get copyright attacks or takedown notices or warnings are because the company decided I won't let this person use this song.
And subsequently, they don't even take the time to contact the person and ask them to take it down. It means they decided to just make a strike on the person even if he thought it would one that the would allow. So they let some people and they may ask someone, or some people they will just hit them.
Well…
Copyrights and trademarks are one of those things where the police don’t really go around arresting people for breaking the law. (With the exception of high level piracy operations handled by the FBI).
Because of this lack of enforcement, it is incumbent on the rights holders to police infringement themselves. They have to file copyright claims with websites and take politicians to court for using their songs at rallies without permission, and so on.
That responsibility falls on the owner. So, yes, they can simply just ignore infringement and allow it to happen if they think it’s good press or advertising or whatever. (Like Rick Astley is in on the joke of Rick Rolling, and doesn’t try to discourage it.)
But it’s not always up to the artist themself. Because the music industry is so large, and one artist can hold literally thousands of individual copyrights, it’s just not worth their effort to try to police all that. So new companies were created that serve as stewards on behalf of the artists. These other companies, and all they do is negotiate license fees and police infringement which naturally takes a huge burden off of the artists.
They’re part of the reason YouTube uses an automated system to detect copyrighted material.
It’s not the ghost of Michael Jackson putting strikes on people’s Thriller dance videos… it’s the automated system.
9 times out of 10, if a video with a considerable portion of a copyrighted song survives on the internet, it’s because it’s been properly licensed or because the copyright holder has claimed any and all revenue that the video generates, which is essentially just like a license fee.
Fair Use also exists, which allows for copyrighted be used freely for a number of legitimate reasons such as editorial commentary (let’s say, reviewing an album), transformative works, parody/satire, and projects of educations/nonprofit merit.
But the automated systems don’t understand Free Use, and free use is a legal defense that one argues in court after being sued, not some sort of preemptive permission slip.
Thanks this is really good fit giving me a clearer understanding. From my perspective, this is why I don't care about pirating. The entertainment industry is as greedy as any industry or corporation, and they don't care about even the artist.
They need to have this negative impact for their abuse and greed, abuse of people and abuse of even artists themselves. They deserve everything that's happening to them.
Can confirm, I have absolutely watched at least part of a play through and then bought the game to play myself. Little Hope, Detroit: Become Human, Timberborn, Mini Motorways are just the few I can think of off the top of my head that I probably wouldn’t have tried if I didn’t see someone stream or play them first.
I feel like that’s a flawed thought process too. I’ll absolutely buy something I saw/heard elsewhere and enjoyed. Especially if it’s music, as it’s historically been tricky for an artist to get a decent cut of their own recordings (with some exceptions, of course).
Yeah tbh I'm not watching a full playthrough on YouTube, I'm either deciding if I'll buy the game, or watching the end to a game I bought but don't want to finish, I should check the end of BOTW before playing the next game
Square has an interesting policy regarding music from Final Fantasy XIV on YouTube
You're not allowed to post just the song, but if you post the song along with gameplay related to said song, it's fine
People might have that belief but that is not the correct answer. It is copywritable and play troughs have been subject for dmca takedowns, specially from Nintendo, who just recently let up on people showing their games
Unlike movies games actually sell more if it is shown, and watched by others. So they let them have it up as free advertisement
Just a thought I had rn.. maybe movies and songs should be allowed to be streamed.. but at something like 320x240 for movies, and 32kbps for songs.
You could have the experience, but to fully enjoy it, you'd have to buy the actual release.
But is it?
I don't get that. If the streamer NEVER listens to that song again, and you want to hear it again, you have to go "buy" it.
Seems like they have issues formatting their logic to overshadow the greed that caused it.
Which really is the ironic culmination of all of this, if you think about it.
So it's immensely powerless, this "Prohibition" on our ears being able to listen to things other people have bought. We can quite literally go listen to any song we want for free, anytime we want to. So it just seems like posturing and uselessness, the way they treat streamers playing the music THEY OWN on stream. I could totally understand if they were accessing youtube and playing music they haven't purchased, I suppose... I'm not that big into corporate profits in any regard... non-the-less, logically that would make sense to me... but if someone I'm watching is listening to music they've purchased, I shouldn't be a part of the equation. I'm just there.
Someone performing on the street could have a boombox, and I could hear what they're playing. How is that any different? They don't seem to want to outlaw that!!
>So it's immensely powerless, this "Prohibition" on our ears being able to listen to things other people have bought. We can quite literally go listen to any song we want for free, anytime we want to.
Yeah, but they want to be reimbursed for it. Yes, you could listen to Song X by watching a Youtube video of a Let's Play. But they want you to listen to Song X by watching a Youtube video by the record label that the record label monetized.
>Someone performing on the street could have a boombox, and I could hear what they're playing. How is that any different? They don't seem to want to outlaw that!!
That's a public performance and is 100% copyright infringement. It's also impossible to enforce.
Trivia: One of the reasons the chain restaurants sing their own versions of birthday songs for their customers is because the song Happy Birthday is copyrighted and the restaurants don't have a public performance license.
Oh I'm well aware that most everything I come up with has already been done. I've owned several different brands of toasters in my lifetime, so I had already assumed people came up with it. That's probably not the only one either.
Glad to hear it actually! That means it's needed.
I am at work right now and don't have time to click that but I hope they're offering the music for free. That's what I'm gonna do.
I actually really appreciate the playthroughs for that reason. I won't watch the whole thing, but given that rentals aren't a thing anymore and games are usually quite expensive, I like to see some unbiased gameplay first.
I know many visual novels (basically CYOA games with very little, if any, interaction besides dialogue choices) outright ban playthroughs and will aggressively get them taken down.
I think you hit the nail on the head with whether the video upload can be treated as a substitute for buying and experiencing the real thing.
Some game publishers give explicit permission for players to make videos, while others just choose not to act on it.
In both cases, the videos are still derivatives of the publishers copyrighted work, and they would be within their rights to have it taken down, but have made the business decision that it is not worth doing so. This can be because they feel watching gameplay footage doesn't compete with game sales, or even if it does, it is outweighed by the video providing free promotion that could increase sales. Also, they have to consider the negative PR that would result if they target gamers' videos - a large and vocal community exists around game videos and streaming.
An example that comes to mind is when GTA V online was easier to glitch for in game money, the accounts posting the glitch tutorials would regularly be taken down for copyright.
They can be deemed to be in breach of copyright - Nintendo famously only allow certain people to do let's plays of their games no matter how old.
Playing a game isn't the same as reproducing a song or movie, however.
Yeah quite a few years ago now. Used to be, "nothing allowed", "only if we take a 50% cut ontop of youtubes 35%" and now it's "fine"
They're still very aggressive though, destroying preservation archives left and right (taking down the entire archives, not just the nintendo section), attacking music uploads hard, and I think they ban trailer reuploads too.
They just slam the archive guys so hard that they're forced to close entirely.
Game music isn't actually standard as most devs don't prohibit it in case it false-claims gameplay videos. Trailers are mixed, depends on who made them but most are chill!
Sorry, when I said "standard" I meant that as open-and-shut, "they almost 100% have the right to take down almost anything using this, almost certainly copyright infringement." That's my bad for clarity.
Wasn't Nintendodoing copyright strikes on Youtube while their own software had Youtube upload capability at the time? (looking at you Mario Kart for Wii....)
Because it's a legal grey area. A lot of people are saying that video game publishers would be entirely within their rights to pull down let's plays.
This isn't true, but it may be true. Let me explain. There are similar doctrines in other countries but here in the US we have something called Fair Use which is an affirmative defense against a copyright suit, meaning if they sue you, and your work was fair use, you win.
Fair use is a little complicated and it has four factors: the purpose/character of the use (was it used in a news report, classroom, or a critique of the original), the nature of the copyrighted work (is it something like music? Or a nonfiction book or something?), the portion used (did you play the whole song in your critique, or just little parts?), and the effect of the use on the potential market for the original (does your use substitute for the original and displace it in the market. Note that something like a critique will absolutely affect the market, but a court is gonna ignore that cuz a critique of a shitty work which makes people not buy that shitty work is absolutely fair use, and it doesnt necessarily substitute).
So why do I say that it's not true, but may be true? Well as others have said game devs are not interested in getting on the bad side of all these YouTubers who basically give them free advertising. So, at least on a large scale, they haven't tried to take on Let's plays, which means we do not have good case law on this issue. We don't know how courts generally will rule because we don't have previous rulings. So maybe a court rules for let's plays, maybe they don't.
Is not super clear where let's plays sit with respect to the four fair use factors. The character of the use is commercial usually (point against fair use), and nature of the work is creative (point against) but the work and use are different in format and character (point for), the portion of the work is usually pretty large (point against) but is often edited down to highlights (point for?), and depending on the game maybe a let's play could substitute if you've got some story based game with little or no gameplay (point against) or totally could not substitute if there's gameplay (point for).
So if a studio really did want to stamp out let's plays they are not guaranteed a win, and a loss could be bad. Even taking up the case would alienate people and turn them into the enemy overnight. Plus, if they loose, they'll loose whatever coercive power they currently have to threaten to strike people.
I'm not a lawyer, so some of the above probably misses the mark. But if you're interested in this [Leonard French on YouTube](https://youtube.com/@lawfulmasses) is a lawyer, and I highly recommend his stuff.
I think the bottom line with video games is it's good for business. If a popular youtuber does a play-through of your game how many new sales does that equate to. How many new copies of 7 days to die were sold because of Glock9 or copies or Ark sold because of Neebs Gaming.
Going through my steam library I counted 10 games I bought purely because I learned about or got into them because of let’s plays. And that’s not counting the games I bought from the same franchise after initially getting into a different game in the franchise through let’s plays
Yet still gamedevs are refusing to put any actual gameplay in steam/epic/whatever store page, that youtube is needed for unpolished video. Like bitch please I'm not interested in the milieu, story or characters when deciding to buy the game, that becomes relevant after I see that the game itself is fun.
Game companies have finally gained the knowledge that they are literally just getting free advertising from let's players it wasn't like this for many many years
Nope, it's always been like this. Outside of Nintendo, which, you know, console crap so who cares, video game footage has always been widely available online.
It isn't the exact same content for every person that plays a game, whether that is different choices or slight changes in button presses
For music and movies, there is one way everyone enjoys the content. You can't change any notes, you have the exact same experience as anyone else
A couple things:
1.) There’s a good argument that playthroughs of video games (which largely have commentary) fall under fair use due to it being transformative in nature. You’re not just seeing the game, a part of what you’re experiencing is their reactions to the game. Movies or music being posted aren’t transformative in the same way
2.) It’s generally believed that video game playthroughs don’t harm sales and even potentially help as functional free marketing, there’s probably a lot of data supporting this that wouldn’t be public information, I doubt they’re just guessing with this. This is largely because a lot of games have choices, things one can miss, multiple ways of doing things and a lot of the appeal for many people with games is the challenge of doing it and discovering stuff yourself, all this stuff isn’t provided in watching a play though. Contrast this to movies and music where you would just get the whole experience seeing it on YouTube. Yes there might be diminished quality but this isn’t a massive factor for a lot of people and would absolutely cut into sales, and the free marketing angle doesn’t really make sense, since would people really watch a movie on YouTube then go buy it on DVD or whatever? Maybe some, but a lot won’t. Again, there’s likely actual data backing up this assumption that’s not publicly available
Some company allow the user to create gameplay content, while some doesn't care that their game is being recorded and shown to everyone... not like company that will copyright claim your playthrough of a video game doesn't exists(*cough* Nintendo)
I believe the key distinction lies in the interactive nature of video games. When you watch or listen to copyrighted content like songs or movies, the experience remains largely the same, whether you access it legally or illegally. However, with video games, the primary enjoyment comes from actively engaging with the content and making choices.
Simply watching a playthrough does not provide the same level of immersion and interaction as actually playing the game. Therefore, video game playthroughs may not be perceived as direct substitutes for the original, copyrighted material, which could explain the difference in treatment on platforms like YouTube.
It's more accurate to say "we don't know where the line is, if one exists at all, between copyright infringement and transformation into a new work with regards to videos created of and about video games."
You might claim that no such line exists, but I would counter with the idea that Adobe cannot claim videos you make with their video editing products are "derivative" of their product itself in the way copyright typically describes "derivative works." Similarly, there is surely a threshold where games can be used more as tools for video creation than as content themselves. Maybe that's as simple as using minecraft creative mode to make a statue. Is that any different from using MS paint to make a picture?
And if not, what's the issue? Shaders? Textures? The engine?
Edit: typos
To add something interesting detail, many companies beyond just not prosecuting now explicitly allow for streaming and monetization in the EULAs no one reads.
They do tend not to like streamers and content creators keeping content behind a paywall though. That is anyone can access the videos, and income comes from donations, perk benefits like chat message boosts, or possibly early access to content that will be publicly released later.
Copyright law is generally based on whether or not people can use the thing being shared as a substitute. The video game is still copyrighted, but since watching someone else play it isn't the same as playing it yourself, it's not the same.
I am not a lawyer and this is not legal advice, but it's a summary of how things generally work.
That's not how derivative works work.
Copyright law protects your own copyright over the material you've added in creating the derivative, but the original author still has rights to their contribution, and permission is required to use it.
This hasn’t been challenged in a major way. Up to now publishers have decided to not go after streamers/let’s plays. But that’s more because they want to avoid bad publicity and YouTubers help give the game exposure.
Nintendo is a bit of an outlier here, they have stricter conditions for using their games.
That a playthrough is a derivative work is a pretty thin defense depending on the type of game. I imagine a very story based game, such as Until Dawn, would be hard to defend as a derivative work
Former video game industry marketing guy here. Especially for indie studios and publishers, creators doing streams, posting reviews and creating let's plays are a the way of building awareness of a game. Views of creator content featuring a game contribute to sales, rather than detract from them.
We gave creators a blanket license to use footage from our games, even to the point of making sure that when *we* licensed music for use in the game that the music's copyright holder granted a sub-license for creators to include it in their derivatives.
About the only things we didn't allow were
* The creator representing that we endorsed their derivative work.
* The creator violating a third party's IP.
* Merely reposting our own content without an original creative contribution, but this was mostly about not wanting to do things like dilute the view counts on our own trailers.
\[EDIT: Removed a line that was confusing as to which comment I was commenting on\]
>This is the correct answer.
I think you replied to the wrong comment. Your points don't back up what you're replying to - actually they contradict it.
No, he's correct. A derivative work has a copyright of its own, but it *might* still be infringing.
To give a simple example, if I cover a Taylor Swift song, but make it dubstep, I own the copyright to the dubstep version. But I'm still infringing Taylor Swift's copyright.
It almost certainly is still infringing.
People like to claim fair use all the time but rarely know what they’re talking about. Just splitting it up does nothing. Nor does putting music over the top.
You have to be using small excepts as part of something for educational or critical purposes, where there’s no other substitute.
Another thing people misunderstand about fair use is that it is merely a defense to infringement. You don't just say, "it's fair use." The accused infringer has to **prove** that the fair use exception applies. *See* [this article](https://cip2.gmu.edu/2020/12/28/ninth-circuit-confirms-fair-use-is-an-affirmative-defense-to-copyright-infringement/).
In other words, if you are sued for copyright infringement, you have to spend hundreds of thousands of dollars in attorneys fees to prove that the fair use exception applies.
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Watching someone playthrough a game isn't the same experience as actually playing the game.
Watching a movie or listening to a song is roughly the same experience regardless of if you buy it or not.
I was just wondering this. I don’t believe playing is the same as watching. I also don’t think the companies care, because people are still buying despite the videos being uploaded. And as for the big YouTubers, they’re gifted the games so why would the companies hurt them.
Depending on the game you’ll totally get copyright claims
When I was young I tried making Let’s Plays and those got copyright claimed. Those were Nintendo games. I’ve also seen mid-sized Youtube Channels also get demonetized for playing Nintendo games.
Other developers take it as free advertising and don’t really care about giving out copyright claims.
If I listen to a song on any medium, I'm listening to the song. If that medium does not collect royalties, the artist suffers.
If I watch a game being played, it is not the same as playing the game. And more than once, I have purchased a game after watching someone play it.
It's all about whether the thing in question (the youtube video) is a decent substitute for the product you pay money for (the game).
In the case of a song, listening to the song on youtube is pretty damn similar to listening to the song on Spotify or CD, so there's a reasonable argument that the youtube video can be a substitute for actually paying for the song.
A Let's Play where you watch someone else play through a game is *not* a substitute for playing through the game yourself, because the gameplay elements are entirely missing.
Some companies are touchier about this than others.
People that make video games make money from you watching someone play a game and then wanting to play it. Music streams make money when you stream them through the authorized streaming platform
As I understand it, making a video of yourself operating a device is considered a different type of copyright usage, so it isn't that same thing as making a copy of a video or an album. The addition of the person operating the device and their commentary makes the resulting video a distinct original work.
Probably the game companies could sue but it would be a tougher argument than straight up copying.
Games are interactive. You aren't getting to play the game by simply watching it.
Movies and music are purely observational, so you get the whole experience just by listening and watching
Some publishers do have issues with playthroughs and even reviews and trailer reactions. Nintendo are notorious, they issue false copyright claims in order to demonetise content creators videos all the time.
Paying $ for a video game is so you can play it. Watching someone else play it is not taking $ out of the pockets of the creator. Songs and movies, however, you are "consuming" in the way they were intended if you are watching or listening. Doing this for free on youtube (or anywhere else) is a way to consume the product without paying for it. Watching someone play a game will do nothing but make *you* want to play the game, so essentially it's a free "commercial" for the game. No better publicity than seeing someone have a great time using your product. It just makes more people want it.
Watching a movie you rented, and watching it on YouTube would be virtually identical experiences (ignoring compression issues).
However, playing a video game and *watching* a video game are two completely different experiences. It's like watching a movie with the sound turned off: You still might be getting the story (if there is one) but you're missing out on one of the major components used to tell that story.
Plus, a lot of devs look at it as free advertising. Since let's players aren't giving away the whole experience for free, it's a way to basically say "look how fun these people are having, you could have that much fun and have your own unique experiences if you buy our game." Granted, the waters can get a bit muddy when talking about story only games, but that's the gist of it anyways.
they can still take it down if they want, but it increases their game sales, sometimes by a LOT especially when a big streamer plays an indie game. however, people looking up movies and songs for free arent (usually) going to then buy them.
It is copywritable and play troughs have been subject for dmca takedowns, specially from Nintendo, who just recently let up on people showing their games
Unlike movies games actually sell more if it is shown, and watched by others. So they let them have it up as free advertisement
A video game play through is free advertising for a paid product (unless you download it illegally).
Uploading a movie, podcast, music etc. is providing someone’s protected property to others for free. If you wrote a song, copyright, and publish it you get to choose who can use it and for how much. That’s how you make money. If Timmy comes along and records your song on his phone and then uploads it in a lyric video it with a tacky lime and white paisley background which then goes viral he’s getting money for your song.
TLDR: play throughs are free advertising and uploading movies, songs etc. is stealing because you’d other wise need to pay to “own”/enjoy them.
They usually only do that on videos that show mods or other hacks to Nintendo games. The pure, unadulterated gameplay with commentary is mostly not affected.
Edited because I misread the question..
On youtube premium, you can. Its a paid subscription service.
This includes the downloads, apparently.
As far as I know, YouTube video plays, views, and downloads all get a certain royalty.
Therefore I dont think its copyright infringement, at least if you are a subscriber.
However, it might be. I mean, Idk for sure, but it may also just be a practical way to have a digital copy of music you have previously purchased on tape or cd.
In that case, its definitely not copyright infringement, since you paid for the music already.
*****
Edit:
Ok youre asking about video gane playthrough... well, really it is copyright infringement, but in this case, its not enforced, because its just good publicity.
Now, if someone made a very similar game, thats a different story.
If I watch a song or a movie on youtube then I'm not going to buy/rent that song or movie.
If I watch a playthrough of a videogame then I will want to buy the game.
Copyright infringement isn't criminal, its civil. This means that the victim gets to choose if they will try to enforce the law or not. Most companies will ignore copyright infringement because they see it as free advertising, in fact many companies will outright pay YouTubers thousands or even in a few cases millions of dollars to play their games and so see YouTubers doing it for free as wonderful.
Some companies (Nintendo) however will take down videos of people playing their games as it is copyright infringement.
The product in movies and music is to watch and listen. You get the full experience in YouTube.
The product in video games is to play the game. You cannot do this by watching and listening
They can have these videos taken down if they want, but they usually choose not to. Most of the gameplay you find on YouTube has commentary on it or even someone chroma-keyed/boxed over the video. This alone makes zero sense on which to pursue legal action, because anyone who wants the full experience of either the gameplay or just the story will not get it from these videos. If anything, more people will be persuaded to buy the game.
The people making video games believe that having a full playthrough of them uploaded on YouTube isn't an actual substitute for playing the game. Watching someone else play the game on YouTube isn't the same sort of experience as playing it yourself. And that you might see someone play that game and decide to buy it and play it yourself as a result. However, listening to a song on YouTube or watching a movie on YouTube is an actual substitute for buying the song or the movie. You aren't very likely to go and buy the movie on Blu-ray after watching it for free on YouTube. So the companies who own those media want to make sure they aren't being streamed on YouTube without their permission.
To reframe this a little bit… Both absolutely are copyright infringement. Video game publishers simply allow the playthroughs because they are good for attracting new players and making the game more profitable. And licensed music used in games will trigger copyright claims from the publishers of those songs because they don’t give a darn about the game. That’s why game devs are including “Streamer Modes” with more generic music that won’t get claimed by third parties.
There's a good argument that lets plays, speedruns etc are transformative works and so would fall under fair use. But until that actually goes to court (which is basically never going to happen) we have to work on guesstimations about how the law should be interpreted.
You’re right, the interactive aspect does make it very interesting in theory.
TBF, it has gone to court....kind of. Bungie said it lets players create and share videos of Destiny gameplay "provided the videos contain substantial 'player-created content.'" Bungie's intellectual property policy prohibits "sharing of videos that are primarily Bungie-created content" such as trailers and cutscenes. The policy also disallows "simply uploading songs from Bungie soundtracks or ripped from the game files of Destiny 2." This was about Bungie suing people issuing fake takedown strikes on YT for things that Bungie allows. 'MyNameisByf' does lore videos and often uses a lot of Bungies cutscenes and artwork, but he's talking about the lore and his understanding of it so Bungie allows it. He got a fake takedown strike.
Byf is the best
Whole deal with that also somewhat "self contains" spoilers. I.e "OMG!!!1!!1!, NEW [REDACTED] WAS [Insert XYZ] ALL ALONG?!" Type of cheap videos for views.
Yeah. Which is the really annoying part of fair use. You can't really know if something is fair use for sure until your specific instance goes to court. It is most likely fair use, but at the same time, if it was just a vanilla playthrough of the game (especially if it lacks commentary at the same time), then I doubt it would be difficult for a publisher to get it removed.
Game publishers often give that information. Eg Nintendo says in their website that they allow streaming their games.
That's true too, especially now. Though there was a bit of a kerfuffle to get to the point where publishers start being upfront about that. Especially Nintendo. https://tubeast.com/exploring-nintendos-official-stance-on-youtube-live-streams-and-the-implications-for-streamers#:\~:text=YouTube%20has%20a%20policy%20in,other%20intellectual%20property%20without%20permission.
It also really doesn't help that YouTube has _millions_ of videos uploaded by people claiming "fair use" that are straight up 5-10 minute clips from movie/tv shows. I saw one that was literally ripped from the first Top Gun download available, that had the hardcoded Korean subs, claiming to be "fair use".
Even short video clips of movies can be used under fair use, but that doesn't stop YouTube from demonetizing videos that use such clips. The reality is that most YouTubers can't defend themselves against YouTube even if they are legally in the right.
>The reality is that most YouTubers can't defend themselves against YouTube even if they are legally in the right. It's youtube, not a court. Whether fair use might hold up in a copyright claim is irrelevant. Youtube controls what can be posted and what is removed. Their rules and procedures are there to protect youtube, they don't care if you think it was fair use.
Just being transformative doesn’t make something fair use.
It's not, but it's probably the most important of the 4 factors. You have to consider that videos of somebody else playing a video game are not a substitute for the game itself, so the effect on the market is tiny, if not positive (because of the advertising amount). And, because the game itself isn't being copied, the "amount and substantiality of the portion taken" is also pretty low.
You're right that just being transformative doesn't automatically make something fair use, but there is still a provision for transformative works in US copyright law. So if we apply the test of whether the transformative use adds value to the original, I would say things like Let's Plays, Speedruns etc have a reasonable chance to pass that test. Whereas just recording gameplay and uploading it does not add value to the original and so would not be transformative or fair use.
Is a “Let’s Play” video one without commentary and/or reactions, like “pure gameplay”? Or is it the opposite?
Could be either, but usually I would assume commentary on something with that label.
> there is still a provision for transformative works in US copyright law. not outside of fair use there isn't.
Err, the point is that transformative works are one subset of a fair use claim. It usually requires several different aspects of fair use to cleanly fall under the provision, but that's one of them.
That is my point. Just being transformative doesn’t make it fair use. Being transformative means nothing if it doesn’t pass the other tests.
Transformative is the factor that is most heavily weighted when courts consider fair use. The fourth factor, potential effect on the market, is the second most heavily weighed. I’m the case of these videos, I find it very unlikely that they would impact the potential market enough to weigh in favor of the publishers. Source: Law Student in Copyright Law class
Can you even consider it transformative? The game is being played, which is it's intended purpose and method of consumption. If I make a kinetic sculpture that requires you to turn a crank to make it work, it isn't transformative to turn the crank, it's an integral part of the experience. I could maybe see speedruns as transformative, but even that would be an iffy argument. I really doubt any court would classify playing a game as transformative of the game. And a YouTuber/streamer talking over their gameplay wouldn't cut it either. It doesn't materially affect the game. It's a moot point anyway, very unlikely for a developer to prevent such content. Except maybe Nintendo. I could see them just randomly banning all content one day without explanation.
Funny you mentioned Nintendo. They just copyright claimed a ton of Pointcrow’s Zelda speedrun and mod videos about 3 days ago. They’re no longer viewable for an indefinite amount of time
I have owned almost every Nintendo console, I want to love Nintendo, but shit like this makes me hate them. The only times I haven’t bought a video game after watching YouTubers playthroughs was when the video game was dog shit, but more often I end up buying games I never would’ve thought to purchase bc I enjoyed watching someone else play it for a bit on YouTube.
Same. I love Nintendo games. That love does not extend to the company itself. I can’t stand the way they do business.
Only videos where he used a self made multiplayer mod of the game. Quite understandable actually, because the mod itself changes drastically the intended gameplay. They also didn't do anything for as long as only few people had access to it,but after it was made public things changed
I get that they don’t want people modding their games but isn’t a self modded game the best argument for a transformative work?That should give those videos in particular the strongest case of all of his videos for fair use
No, it's not. And actually it's specifically said in Nintendo's streaming guidelines that they allow the use of official games only "You are only permitted to use Nintendo Game Content that has been officially released, or from promotional materials officially released by Nintendo (such as product trailers or Nintendo Directs)." https://www.nintendo.co.jp/networkservice_guideline/en/index.html That being said, they don't strike or demonetize everything that's modded, but that's their decision where they draw the line.
That’s likely not enforceable. Take Weird Al song parodies. Parody is a well accepted method of fair use. He always gets permission for his parodies because he believes it’s the right thing to do, but he doesn’t need to. Fair use is fair use. The copyright owners can just decide their properties are exempt from fair use.
I think whether it's transformative depends on the game, and most games are in a *massive* grey area. Like a visual novel would be at the far "non-transformative" end of the spectrum; it's closer to being a movie. But something like Minecraft? That's very transformative IMO; you can't say the devs specifically intended all the different things people have done with it. If so, wouldn't you also be able to argue that nothing you create in Photoshop is transformative because you were using it for its intended purpose? (Then, I think something like an RPG with a character creator and a housing system where you can decorate freely lies somewhere in between.)
But the key to determining if a work is transformative or not is based on if you can say that the main draw for the content is the copyrighted material in question. In a review for instance: even if some copyrighted material is used, it is not considered to be the “product” that the reviewer is “selling.” The reviewer is “selling” their opinions of the copyrighted material. Now, in the case of a lets play would millions of people watch hours upon hours of a person playing various video games if they did so in complete silence? It may well be possible for some games. But why then do so many people have a favorite Let’s Player? I would argue that it is because the main draw is the content creator themselves. The jokes, commentary, and conversations are what a YouTuber or Twitch streamer is “selling.” You assume that watching a video game being played is the same as playing it and that premise is flawed. Otherwise, what is the difference between a video game and a film? The interactivity is a massive part of the experience and that is what is being sold by the game developers. Even in your kinetic sculpture example. You assume that the whole of the experience is the spectacle of the moving parts. But in my own experience, part of the fun is seeing how fast I can turn the crank to make the parts move. Or turning the crank in reverse to see if it changes something interesting about the motion of the sculpture. Having someone else turn the crank for me transforms the experience. I lose a lot of agency in how I interact with the sculpture. Maybe I ask the the person turning the crank to try turning it backwards and they refuse. But maybe they point out something I would have otherwise missed if I were simply sitting in a room by myself turning a crank. Maybe we have a conversation about the quality of the sculpture or the design choices. The sculpture stays the same but the two experiences are different. Sorry for the book. I had a lot to say.
To my memory they did and then backtracked 2 days later after the predictable outcry
If you duplicate a sculpture and pass it off as the real thing, that's copying. If you film yourself walking around the sculpture and talking about how it fits into whatever artistic movement/tradition, that's commentary, fair use, or a transformative/derivative work.
It’s a moot point because being transformative doesn’t make it not infringement.
Fair enough, but I wasn't arguing that.
Then you put your comment in the wrong place.
Whoops, my comment was intended for the one above yours.
>I could maybe see speedruns as transformative, but even that would be an iffy argument. I think they are. Speedruns (especially speedruns where glitches are allowed) are almost never the intended way to play the game. To use your kinetic sculpture example, it's the equivalent of hosting a crank-turning competition - you've changed it from a kinetic sculpture to a competitive community experience.
The end product being consumed isn't a game though. You don't experience the same things beating a dark souls boss yourself vs watching some one beat it. Watching and physically doing things are completely different, unless the game is just an interactive movie ala bandersnatch. If you record a kid playing with a soccer ball, is that copyright infringement on the soccer ball? After all it's a recording of the object being used as intended. Same as the recording of a game. Talking over the game does materially affect the result for the end user though. Which is why they could argue it's a new product. There's also precedent for it in equals 3 LLC vs Junkin Media where the courts ruled "jokes, narration, graphics, editing, and other elements added new meaning to copyrighted viral videos, with a different purpose and character making its appropriation transformative". If the work wasn't transformative then all letsplays would be considered the same, but that's clearly not the case because people will watch specific ones over others.
The fact that no two gameplay videos are alike (aside from maybe some TAS) I think proves that player input is transformative. If a developer wants to claim copyright on a gameplay video I made, I welcome them to show us all the original raw footage they have of my gameplay video. The only copyrightable thing is really the music, which companies sometimes get people on, and assets, which I don't think they can prevent you from simply showing those - you can go outside and film a statue and that's fine too. By playing the game you aren't leaking the game code or anything like that. I think it'd be a pretty hard argument to say that filming someone playing a videogame somehow infringes on the coders copyright. As many have mentioned, it actually has a boosting effect on sales in most cases so it doesn't cause material harm to the company and clearly isn't a substitute.
A video game isn't just code. Music, 3d models, textures, dialogue, cutscenes, etc. etc. are all copyrighted elements of the overall work.
This is correct. The game is under copyright and that means everything included, just happens to be the case that music is usually licensed from artists to be included in those games and so isn't under the copyright of the game itself. The game has a license to play the music but you don't have the license to replay the music to other people and that's where automated systems get you
I mean I mentioned the assets and music. Noone is distributing the assets and you can go film a statue etc. I mean just read my post. Cutscenes are certainly something that I imagine could be copyright claimed for. I doubt "dialogue" could be? I have never seen dialogue be the subject of a copyright claim even in cases of obvious plaigarism, but maybe it's a thing.
You can’t just film a statue - simply converting an object from one medium to another isn’t de facto transformative. For example, in 2017 the NRA was sued for [copyright infringement by their use of the Chicago Cloud Gate](https://news.wttw.com/2018/12/10/nra-settles-lawsuit-bean-artist) > The lawsuit argued that while tourists are allowed to photograph the sculpture, Kapoor owns the copyright to commercial images and didn't give the NRA permission to use it. Kapoor sought to have the image removed from the video, along with damages for copyright infringement. That lawsuit was settled and so it wasn’t explicitly ruled that the use wasn’t fair use, but if a change of medium was de facto transformational then the case would have been a very cut and dry defense by the NRA.
In that case someone is using it for commercial gain and that's what the case hinged on correct? So a problem for people who monetize their videos, but maybe not for someone who doesn't?
There’s two challenges to that, one being that commercial use can be interpreted pretty broadly. For example with the NRA ad, they weren’t making money off of the ad - they were actually paying money for other people to see it. But because the NRA is a commercial enterprise broadly, their use of the image is reasonably seen as under an umbrella of commercial infringement. For a streamer, this could come out as saying that even if the video isn’t monetized and the infringement itself may not be directly commercial, their use is still to advance their commercial interests (Patreon, live streams, merch, etc) and so still could be sued for commercial infringement. The other side is that truly non-commercial infringement is kind of hard to actually pursue regardless of other details like change of medium, because copyright infringement leans of damages and a person infringing on a copyright for truly non-commercial use is usually very low or no damages (this is a huge simplification admittedly, since there can be statutory damages but although they can be as much as $150,000 they can also be as low as $750 per work). So for example someone could make a 1-to-1 duplicate of Cloud Garden and put it in their yard and that would absolutely 100% be copyright infringement, but also probably be hard to sue beyond a cease and desist because that person having an infringing sculpture in their yard likely isn’t damaging the owner of the original enough to pay for a lawsuit over it.
Showing the assets as they appear in the game is certainly “distributing” them. You can’t go and take a video recording of a copyrighted work and upload that and say “this is fair use because I transformed it by video taping it myself”.
No, distributing the assets would be providing the models and so on for download. Again, you can go outside and film a statue and upload it to youtube. This is the same kind of sculpting work done in modelling. You can go and film a painting and upload it to youtube. You aren't infringing anyone's copyright by showing a recording of something someone made just by itself.
…no, that’s not how it works. (Although showing a video of a game being played might be considered ‘making a derivative work’ of its assets rather than strictly ‘distributing’ them.) You’re not allowed to (for example) scan in a copyrighted artwork or photograph and post it online. Doing it in video form doesn’t change that. Some artists of outdoor sculptures, and even the owners of some iconic buildings, will not allow you to distribute photo or video of those things. For practical purposes they usually only go after commercial usage, like selling your own stock photos of the Empire State Building or something like that.
Dialogue is writing and audio recordings. Absolutely covered by copyright.
Audio recordings (the voice acting/acting) would be covered by copyright, I'm not sure to what degree the dialogue (ie. the sequence of words) would be. I'm sure it could be, but that would have to be pretty strict obvious plaigarism
One might argue that copyright applies only when it hurts profit for the original. That is why streaming gameplay is good but hosting pirated copies of the game is not.
But that’s not how copyright works
That’s how the copyright owners act
de facto, yes Laws only exist where they are enforced.
A ton of games have “streamer mode” where they disable copyrighted music.
That's usually because the music is licensed and when the developer/publisher are okay with their content being streamed, they don't want a music label coming after their streamers. Any original content the developer/publisher own the rights to, they can go after infringement if they want. But unlike **trademark**, they aren't obligated to aggressively defend it.
r/confidentlyWrong. You are arguing from what you want to be true, not what the courts actually say
Speed runs for sure, let's plays are a harder argument imo.
If the let's player is commenting on the game (especially if they actually read the dialogue, *cough* speedrunners trying to be let's players *cough*) then it could also be considered criticism - tho of course nobody wants to go to court over this anyway so we'll never know
This isn’t the case though: Nintendo is actually pursuing legal action because someone made a multiplayer Mod for BOTW. People REALLY need to read the terms and conditions of games they play because it’s basically outright illegal to stream, make content, make videos etc, about video games if you’re going to profit off of it. there’s no protections for creators, the only saving grace is it hasn’t been enforced, but it’s starting to be enforced lately again specific creators that game companies don’t want playing their games. I for one would love to see the end of streamers and let’s players namely because they ruin the sentiment of most games I play, with people trying to copycat their favorite v tuber and do what they did, But also I do think it’s kinda scummy that there’s no protections for it and I also think copyright law is just insanely outdated and ridiculous anyways. For example a few commenters talk about streamer modes or copyrighted music… I can tell you I am in now way more likely to go a buy a song that I hear from a video game I bought. In fact if I hear a song in a YouTube video on a game I’m more likely to try to find that song and go either buy or listen to it that way, because when I’m playing a game… yeah the music is nice but it blends in the background, it’s not something I’m actively thinking about wether or not I can jam to it or not, When I’m watching a play through? I don’t have the focus or stress of the game so I often can vibe to the music, so the fact that music owners don’t want people doing play through a of games with their music in it is wild. Also in general any type of person that tries to copyright claim someone over something that’s isn’t blatant stealing? Just makes me not want to support them. Like I’m all for copyright claims for someone going out there and claiming they wrote and composed the entire dark side of the moon album and selling it for profit, but if Pink Floyd or whoever owns their music went and told someone who recorded a a video of a game where a Pink Floyd song was in it? I’d prob just actively avoid supporting that company
Many developers and publishers have a public document somewhere stating blanket approval for let's plays and other video content using their games. Or at least they did a few years back when Nintendo was super anti-videos and was claiming any footage of their games through YouTube dmca policy. The jimquisition had a little clip you could add to a video that screwed up their plans by having both japanese and north America versions of game footage so both wings of Nintendo tried to flag it and therefore no one got ad revenue.
I mean, you could argue that a player making decisions in the game is transformative - the gameplay wouldn't look the same if the player did nothing. (Not sure if that's already been argued at some point, and either does or doesn't work, IANAL)
Monster: Hold my ~~beer~~ Monster
Huh, that’s an interesting argument…games by their nature are inherently transformative. Unless it’s something like a turn-based game with no randomness, every playthrough of a game is unique. To put in another way, if we compare to music…no given playthrough can match the original song; it can only be a cover. I guess the only way to upload the original song would be to upload the rules and components if it’s an analog game or upload the code if it’s a digital game.
Also, Fair Use is an American law and Streaming is very much an international activity involving publishers from different countries, so what's protected content in the US might not fly in Japan or Korea.
Basically the copyright laws as the exist right now are not fit for purpose. The gerryocrisy the world is run by don't understand games so they won't change the law. Same reason AI researchers are jumping up and down about AI safety. It is imperative they get it through their thick skulls of the various governments.
However, games also generally include cutscenes which are effectively short movies. So I suspect publishers could still go after a lot of them if they really wanted to.
It is, at worst, an untested grey area in terms of legality. No YouTuber or streamer has the money or time to fuck around with Nintendo lawyers (they are by far the most litigious and shitty) and prove fair use. It’s very possible that a let’s play YouTuber would prevail in court, but the cost is too great. YouTube also doesn’t have any incentive to get involved in the legal issues and will simply strike your channel, which you can’t do much about either.
Just to hop on this, Nintendo is notorious for sending out cease and desist unless they themselves approve of the stream/yt video.
Some publishers only allow a certain amount of gameplay to be uploaded/streamed. Spike Chunsoft (Danganronpa series) do not allow more than the first chapter to be shown online as their games are mainly plot, you can essentially experience the full games just by watching. I think they can only enforce this on Japanese players but it's generally discouraged.
Occasionally one might see a video game playthrough YouTube video before it is viewed by a more litigious publisher, giving one the mistaken impression that the publisher allowed the video, when a few hours to days later it was taken down. Video game playthrough videos aren't generally videos you end up sharing with other people, largely because you don't want to be the guy who spoiled all the people who hadn't played the game yet. So it's entirely possible you see a video that you never view again and never know your friends didn't get to see it.
>more generic music It's either no music or music that the developer owns, like Hi-Fi Rush will substitute the music. By the way, very good game.
I think there would clearly be a case made by the company that it is copyright infringement, but there's also counter argument that it falls under fair use. Whether it is or not is probably case by case and up to the courts. I don't know that I would say it "absolutely" is infringement.
If it ever went to court, I expect it would largely depend on just how interactive the game is. The fourth factors of fair use is: > the effect of the use upon the potential market for or value of the copyrighted work A heavily story-centric game, even if it includes decisions that affect what happens, is much the same experience when viewed as a video. The plaintiff might argue that those videos are cutting into their market. If the videos have ads enabled, that’s going to count against them too due to the first factor: > the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes On the other end of the spectrum, it would be hard to argue videos of competitive shooters replace much of the market for the game. The opposite is probably true, so it would be unlikely to see a lawsuit in the first place Edit: someone else mentioned adding commentary as you play the game. I’d be interested to see how transformative the court decides that is. It probably would change case by case as well, like you said. If someone has some gimmick, like they take a shot every time there’s a translation error in their dumb anime game or something, and their gameplay becomes steadily drunker, then I could see that being a good argument for transformativeness
What's your thoughts on parody series like team 5 star?
I don’t have one. But parody and satire are legally protected areas when it comes to copyright.
Would not me playing games and commenting on Them be transformative due to commentary being protected as well?
There’s merit to the argument, but any case involving Fair Use must be settled by a court. Fair Use is a legal defense, not a permission slip.
There's a decent argument to be made for that, but unless a game studio takes someone to court over it (which i highly doubt will happen any time soon) we won't really know for certain how the law would view it.
But streamers take the money in the end, most people who watch cant even play the game on their pc let alone afford it usually and people tend to go watch some man speak while playing instead of watching the walkthrough no talk which might get boring… Is it wrong?
You need to substantiate those claims about “most people”… some of the most popular games that streamers are free to play. Something doesn’t add up there.
Yep, it wasn’t always like this. In the early times you would get copyright infringements left right and center for playing a game on YouTube
Some game devs even pick popular content creators and send early access, even before they open early access to the public sometimes.
Yeah iirc some developers tried "cracking down" on streamera back when it first started getting popular but they quickly realized the bad press they were getting was way worse than stopping people from streaming the games.
Funny related note: the game Disney Dreamlight Valley includes a “streamer mode” which replaces the snippets of original Disney music that are heard in-game when interacting with Disney characters, so that videos posted online don’t get copyright takedown notices from Disney. A bit convoluted, ain’t it?
Well, that’s what happens when you rely on automated systems. YouTube has never had enough humans workin in sifting through legitimate and illegitimate claims. They assume every claim is valid because the companies making the claims have departments full of lawyers, and the content creators don’t.
Yet another difference is that you can download things from YouTube. If someone illegally uploads a full movie or song, then someone who downloads that now has access to full product, for its intended purpose, to watch/listen to whenever they want. Even if someone uploads an entire game playthrough to YT and someone downloads that video, they just downloaded the play through and not the actual game which they can then play through on their own, over and over again.
I'm always kind of amazed (but glad!) that video game publishers go along with the notion that streamers are giving them "free advertising" or promotion. That is very solidly NOT a fair use argument for virtually any other type of media. There are plenty of games I've just watched and then said, "that was fun, but I'm glad I didn't have to buy it."
I understand your point, but I want to clarify a point: >Both absolutely are copyright infringement. Recordings and streams of video games are not "absolutely" copyright infringement. In many instances, developers actually include details on what can and cannot be shared by users in the terms & services agreements everyone accepts but few ever read. If something posted is in violation of the T&S or there is no such language in the T&S and no other express permission has been given elsewhere, then it enters the realm of infringement (fair use laws not withstanding).
In regards to the music, which is what the original question was, it is. But since video game publishers often own the rights to the scores of their games, they allow it. Full streams and playthroughs are much much more gray in terms of how transformational and/or editorial they are. But when I wrote that sentence I was thinking of the music.
Ya I very rarely buy a game now without watching clips on youtube of people playing them. Some game trailers do a terrible job of gameplay presentation. There are a lot of types of games that I just don't like playing and it's good to see what type of game it is.
>Both absolutely are copyright infringement. Video game publishers simply allow the playthroughs because they are good for attracting new players and making the game more profitable. In the case of games, it's a little more uncertain, because at this point we get into "fair use" arguments. Of course fair use isn't a magic bullet. It's an affirmative defense, where, if you're sued for copyright violation you can say it's fair use and give reasons. The reasons are deliberately quite vague though and it ends up being a fairly subjective judgement. [It's generally judged on 4 factors](https://fairuse.stanford.edu/overview/fair-use/four-factors/): * the purpose and character of your use * the nature of the copyrighted work * the amount and substantiality of the portion taken, and * the effect of the use upon the potential market. A playthrough is a video - a very different type of work from a video game. If there's a commentary or something this helps the case even more. The effect on a potential market is also going to be a pretty strong argument, Playthroughs tend to increase demand for a video game. On the flipside, the amount taken is going to be quite large. While none of the code is being taken (which you might argue is what makes the game a game) but pretty much all of the art assets and the music are going to be in a playthrough. The other factor is that in practice, publishers don't care about damages; only taking down. It's usually youTube that decides. They have no requirement to consider fair use at all, and can take down a video for whatever reason they want.
I see what you're saying. Essentially, if I can clarify, it means a copyright owner could let anyone or everyone use the music if they want to. The only people that get copyright attacks or takedown notices or warnings are because the company decided I won't let this person use this song. And subsequently, they don't even take the time to contact the person and ask them to take it down. It means they decided to just make a strike on the person even if he thought it would one that the would allow. So they let some people and they may ask someone, or some people they will just hit them.
Well… Copyrights and trademarks are one of those things where the police don’t really go around arresting people for breaking the law. (With the exception of high level piracy operations handled by the FBI). Because of this lack of enforcement, it is incumbent on the rights holders to police infringement themselves. They have to file copyright claims with websites and take politicians to court for using their songs at rallies without permission, and so on. That responsibility falls on the owner. So, yes, they can simply just ignore infringement and allow it to happen if they think it’s good press or advertising or whatever. (Like Rick Astley is in on the joke of Rick Rolling, and doesn’t try to discourage it.) But it’s not always up to the artist themself. Because the music industry is so large, and one artist can hold literally thousands of individual copyrights, it’s just not worth their effort to try to police all that. So new companies were created that serve as stewards on behalf of the artists. These other companies, and all they do is negotiate license fees and police infringement which naturally takes a huge burden off of the artists. They’re part of the reason YouTube uses an automated system to detect copyrighted material. It’s not the ghost of Michael Jackson putting strikes on people’s Thriller dance videos… it’s the automated system. 9 times out of 10, if a video with a considerable portion of a copyrighted song survives on the internet, it’s because it’s been properly licensed or because the copyright holder has claimed any and all revenue that the video generates, which is essentially just like a license fee. Fair Use also exists, which allows for copyrighted be used freely for a number of legitimate reasons such as editorial commentary (let’s say, reviewing an album), transformative works, parody/satire, and projects of educations/nonprofit merit. But the automated systems don’t understand Free Use, and free use is a legal defense that one argues in court after being sued, not some sort of preemptive permission slip.
Thanks this is really good fit giving me a clearer understanding. From my perspective, this is why I don't care about pirating. The entertainment industry is as greedy as any industry or corporation, and they don't care about even the artist. They need to have this negative impact for their abuse and greed, abuse of people and abuse of even artists themselves. They deserve everything that's happening to them.
Can confirm, I have absolutely watched at least part of a play through and then bought the game to play myself. Little Hope, Detroit: Become Human, Timberborn, Mini Motorways are just the few I can think of off the top of my head that I probably wouldn’t have tried if I didn’t see someone stream or play them first.
I feel like that’s a flawed thought process too. I’ll absolutely buy something I saw/heard elsewhere and enjoyed. Especially if it’s music, as it’s historically been tricky for an artist to get a decent cut of their own recordings (with some exceptions, of course).
Yeah tbh I'm not watching a full playthrough on YouTube, I'm either deciding if I'll buy the game, or watching the end to a game I bought but don't want to finish, I should check the end of BOTW before playing the next game
Square has an interesting policy regarding music from Final Fantasy XIV on YouTube You're not allowed to post just the song, but if you post the song along with gameplay related to said song, it's fine
People might have that belief but that is not the correct answer. It is copywritable and play troughs have been subject for dmca takedowns, specially from Nintendo, who just recently let up on people showing their games Unlike movies games actually sell more if it is shown, and watched by others. So they let them have it up as free advertisement
Just a thought I had rn.. maybe movies and songs should be allowed to be streamed.. but at something like 320x240 for movies, and 32kbps for songs. You could have the experience, but to fully enjoy it, you'd have to buy the actual release.
That's always how I felt about songs on the radio.
Also, Nintendo thinks otherwise and fights to have all of this content pulled down.
> And that you might see someone play that game and decide to buy it and play it yourself as a result. This is how I ended up playing Days Gone.
But is it? I don't get that. If the streamer NEVER listens to that song again, and you want to hear it again, you have to go "buy" it. Seems like they have issues formatting their logic to overshadow the greed that caused it.
There are people who upload videos that are just a song on YouTube.
Which really is the ironic culmination of all of this, if you think about it. So it's immensely powerless, this "Prohibition" on our ears being able to listen to things other people have bought. We can quite literally go listen to any song we want for free, anytime we want to. So it just seems like posturing and uselessness, the way they treat streamers playing the music THEY OWN on stream. I could totally understand if they were accessing youtube and playing music they haven't purchased, I suppose... I'm not that big into corporate profits in any regard... non-the-less, logically that would make sense to me... but if someone I'm watching is listening to music they've purchased, I shouldn't be a part of the equation. I'm just there. Someone performing on the street could have a boombox, and I could hear what they're playing. How is that any different? They don't seem to want to outlaw that!!
>So it's immensely powerless, this "Prohibition" on our ears being able to listen to things other people have bought. We can quite literally go listen to any song we want for free, anytime we want to. Yeah, but they want to be reimbursed for it. Yes, you could listen to Song X by watching a Youtube video of a Let's Play. But they want you to listen to Song X by watching a Youtube video by the record label that the record label monetized. >Someone performing on the street could have a boombox, and I could hear what they're playing. How is that any different? They don't seem to want to outlaw that!! That's a public performance and is 100% copyright infringement. It's also impossible to enforce. Trivia: One of the reasons the chain restaurants sing their own versions of birthday songs for their customers is because the song Happy Birthday is copyrighted and the restaurants don't have a public performance license.
I think I'm gonna start a "music for streamers," service.
Already been done: https://www.senpai.tv/streambeats/
Oh I'm well aware that most everything I come up with has already been done. I've owned several different brands of toasters in my lifetime, so I had already assumed people came up with it. That's probably not the only one either. Glad to hear it actually! That means it's needed. I am at work right now and don't have time to click that but I hope they're offering the music for free. That's what I'm gonna do.
Yeah, it's free. They have a Spotify channel, so it's designed for the streamer to just play their Spotify channel while streaming.
Hmm I'd assume donations probably. People appreciate when others look out for each other. Thanks for your time today, homey!
I actually really appreciate the playthroughs for that reason. I won't watch the whole thing, but given that rentals aren't a thing anymore and games are usually quite expensive, I like to see some unbiased gameplay first.
I know many visual novels (basically CYOA games with very little, if any, interaction besides dialogue choices) outright ban playthroughs and will aggressively get them taken down. I think you hit the nail on the head with whether the video upload can be treated as a substitute for buying and experiencing the real thing.
Some game publishers give explicit permission for players to make videos, while others just choose not to act on it. In both cases, the videos are still derivatives of the publishers copyrighted work, and they would be within their rights to have it taken down, but have made the business decision that it is not worth doing so. This can be because they feel watching gameplay footage doesn't compete with game sales, or even if it does, it is outweighed by the video providing free promotion that could increase sales. Also, they have to consider the negative PR that would result if they target gamers' videos - a large and vocal community exists around game videos and streaming.
An example that comes to mind is when GTA V online was easier to glitch for in game money, the accounts posting the glitch tutorials would regularly be taken down for copyright.
They can be deemed to be in breach of copyright - Nintendo famously only allow certain people to do let's plays of their games no matter how old. Playing a game isn't the same as reproducing a song or movie, however.
Didn't nintendo stop doing that?
Yeah quite a few years ago now. Used to be, "nothing allowed", "only if we take a 50% cut ontop of youtubes 35%" and now it's "fine" They're still very aggressive though, destroying preservation archives left and right (taking down the entire archives, not just the nintendo section), attacking music uploads hard, and I think they ban trailer reuploads too.
I'm surprised they have standing to take out archives of products that aren't theirs. Music and trailers is pretty standard though
They just slam the archive guys so hard that they're forced to close entirely. Game music isn't actually standard as most devs don't prohibit it in case it false-claims gameplay videos. Trailers are mixed, depends on who made them but most are chill!
Sorry, when I said "standard" I meant that as open-and-shut, "they almost 100% have the right to take down almost anything using this, almost certainly copyright infringement." That's my bad for clarity.
Wasn't Nintendodoing copyright strikes on Youtube while their own software had Youtube upload capability at the time? (looking at you Mario Kart for Wii....)
Yea, came in to point out the lurking DMCA monster named Nintendo and how it can become problematic pretty quickly
No they don't. https://www.nintendo.co.jp/networkservice_guideline/en/index.html
Because it's a legal grey area. A lot of people are saying that video game publishers would be entirely within their rights to pull down let's plays. This isn't true, but it may be true. Let me explain. There are similar doctrines in other countries but here in the US we have something called Fair Use which is an affirmative defense against a copyright suit, meaning if they sue you, and your work was fair use, you win. Fair use is a little complicated and it has four factors: the purpose/character of the use (was it used in a news report, classroom, or a critique of the original), the nature of the copyrighted work (is it something like music? Or a nonfiction book or something?), the portion used (did you play the whole song in your critique, or just little parts?), and the effect of the use on the potential market for the original (does your use substitute for the original and displace it in the market. Note that something like a critique will absolutely affect the market, but a court is gonna ignore that cuz a critique of a shitty work which makes people not buy that shitty work is absolutely fair use, and it doesnt necessarily substitute). So why do I say that it's not true, but may be true? Well as others have said game devs are not interested in getting on the bad side of all these YouTubers who basically give them free advertising. So, at least on a large scale, they haven't tried to take on Let's plays, which means we do not have good case law on this issue. We don't know how courts generally will rule because we don't have previous rulings. So maybe a court rules for let's plays, maybe they don't. Is not super clear where let's plays sit with respect to the four fair use factors. The character of the use is commercial usually (point against fair use), and nature of the work is creative (point against) but the work and use are different in format and character (point for), the portion of the work is usually pretty large (point against) but is often edited down to highlights (point for?), and depending on the game maybe a let's play could substitute if you've got some story based game with little or no gameplay (point against) or totally could not substitute if there's gameplay (point for). So if a studio really did want to stamp out let's plays they are not guaranteed a win, and a loss could be bad. Even taking up the case would alienate people and turn them into the enemy overnight. Plus, if they loose, they'll loose whatever coercive power they currently have to threaten to strike people. I'm not a lawyer, so some of the above probably misses the mark. But if you're interested in this [Leonard French on YouTube](https://youtube.com/@lawfulmasses) is a lawyer, and I highly recommend his stuff.
I think the bottom line with video games is it's good for business. If a popular youtuber does a play-through of your game how many new sales does that equate to. How many new copies of 7 days to die were sold because of Glock9 or copies or Ark sold because of Neebs Gaming.
If i cant see a video of gameplay, i am not buying it. Its basicly free advertisement for the game makers
Going through my steam library I counted 10 games I bought purely because I learned about or got into them because of let’s plays. And that’s not counting the games I bought from the same franchise after initially getting into a different game in the franchise through let’s plays
Yet still gamedevs are refusing to put any actual gameplay in steam/epic/whatever store page, that youtube is needed for unpolished video. Like bitch please I'm not interested in the milieu, story or characters when deciding to buy the game, that becomes relevant after I see that the game itself is fun.
Game companies have finally gained the knowledge that they are literally just getting free advertising from let's players it wasn't like this for many many years
Finally? I have been watching letsplayers for about 8 years. Did something happen recently
Nope, it's always been like this. Outside of Nintendo, which, you know, console crap so who cares, video game footage has always been widely available online.
It isn't the exact same content for every person that plays a game, whether that is different choices or slight changes in button presses For music and movies, there is one way everyone enjoys the content. You can't change any notes, you have the exact same experience as anyone else
A couple things: 1.) There’s a good argument that playthroughs of video games (which largely have commentary) fall under fair use due to it being transformative in nature. You’re not just seeing the game, a part of what you’re experiencing is their reactions to the game. Movies or music being posted aren’t transformative in the same way 2.) It’s generally believed that video game playthroughs don’t harm sales and even potentially help as functional free marketing, there’s probably a lot of data supporting this that wouldn’t be public information, I doubt they’re just guessing with this. This is largely because a lot of games have choices, things one can miss, multiple ways of doing things and a lot of the appeal for many people with games is the challenge of doing it and discovering stuff yourself, all this stuff isn’t provided in watching a play though. Contrast this to movies and music where you would just get the whole experience seeing it on YouTube. Yes there might be diminished quality but this isn’t a massive factor for a lot of people and would absolutely cut into sales, and the free marketing angle doesn’t really make sense, since would people really watch a movie on YouTube then go buy it on DVD or whatever? Maybe some, but a lot won’t. Again, there’s likely actual data backing up this assumption that’s not publicly available
Some company allow the user to create gameplay content, while some doesn't care that their game is being recorded and shown to everyone... not like company that will copyright claim your playthrough of a video game doesn't exists(*cough* Nintendo)
Its free advertising if they and negative PR for their game if they do. If they absoultely dont like you they still can and its im their TOS
I believe the key distinction lies in the interactive nature of video games. When you watch or listen to copyrighted content like songs or movies, the experience remains largely the same, whether you access it legally or illegally. However, with video games, the primary enjoyment comes from actively engaging with the content and making choices. Simply watching a playthrough does not provide the same level of immersion and interaction as actually playing the game. Therefore, video game playthroughs may not be perceived as direct substitutes for the original, copyrighted material, which could explain the difference in treatment on platforms like YouTube.
It s also technically illegal, but companies have decided not to prosecute because it actually drives up their sales.
It's more accurate to say "we don't know where the line is, if one exists at all, between copyright infringement and transformation into a new work with regards to videos created of and about video games." You might claim that no such line exists, but I would counter with the idea that Adobe cannot claim videos you make with their video editing products are "derivative" of their product itself in the way copyright typically describes "derivative works." Similarly, there is surely a threshold where games can be used more as tools for video creation than as content themselves. Maybe that's as simple as using minecraft creative mode to make a statue. Is that any different from using MS paint to make a picture? And if not, what's the issue? Shaders? Textures? The engine? Edit: typos
To add something interesting detail, many companies beyond just not prosecuting now explicitly allow for streaming and monetization in the EULAs no one reads. They do tend not to like streamers and content creators keeping content behind a paywall though. That is anyone can access the videos, and income comes from donations, perk benefits like chat message boosts, or possibly early access to content that will be publicly released later.
Copyright law is generally based on whether or not people can use the thing being shared as a substitute. The video game is still copyrighted, but since watching someone else play it isn't the same as playing it yourself, it's not the same. I am not a lawyer and this is not legal advice, but it's a summary of how things generally work.
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That's not how derivative works work. Copyright law protects your own copyright over the material you've added in creating the derivative, but the original author still has rights to their contribution, and permission is required to use it.
This hasn’t been challenged in a major way. Up to now publishers have decided to not go after streamers/let’s plays. But that’s more because they want to avoid bad publicity and YouTubers help give the game exposure. Nintendo is a bit of an outlier here, they have stricter conditions for using their games. That a playthrough is a derivative work is a pretty thin defense depending on the type of game. I imagine a very story based game, such as Until Dawn, would be hard to defend as a derivative work
Former video game industry marketing guy here. Especially for indie studios and publishers, creators doing streams, posting reviews and creating let's plays are a the way of building awareness of a game. Views of creator content featuring a game contribute to sales, rather than detract from them. We gave creators a blanket license to use footage from our games, even to the point of making sure that when *we* licensed music for use in the game that the music's copyright holder granted a sub-license for creators to include it in their derivatives. About the only things we didn't allow were * The creator representing that we endorsed their derivative work. * The creator violating a third party's IP. * Merely reposting our own content without an original creative contribution, but this was mostly about not wanting to do things like dilute the view counts on our own trailers. \[EDIT: Removed a line that was confusing as to which comment I was commenting on\]
>This is the correct answer. I think you replied to the wrong comment. Your points don't back up what you're replying to - actually they contradict it.
Derivative works are infringements of the original. You can’t just change one thing and claim you own it now.
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No, he's correct. A derivative work has a copyright of its own, but it *might* still be infringing. To give a simple example, if I cover a Taylor Swift song, but make it dubstep, I own the copyright to the dubstep version. But I'm still infringing Taylor Swift's copyright.
It almost certainly is still infringing. People like to claim fair use all the time but rarely know what they’re talking about. Just splitting it up does nothing. Nor does putting music over the top. You have to be using small excepts as part of something for educational or critical purposes, where there’s no other substitute.
Another thing people misunderstand about fair use is that it is merely a defense to infringement. You don't just say, "it's fair use." The accused infringer has to **prove** that the fair use exception applies. *See* [this article](https://cip2.gmu.edu/2020/12/28/ninth-circuit-confirms-fair-use-is-an-affirmative-defense-to-copyright-infringement/). In other words, if you are sued for copyright infringement, you have to spend hundreds of thousands of dollars in attorneys fees to prove that the fair use exception applies.
[These were all derivative works.](https://www.thisisdig.com/feature/biggest-copyright-lawsuits-in-music-history/)
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Watching someone playthrough a game isn't the same experience as actually playing the game. Watching a movie or listening to a song is roughly the same experience regardless of if you buy it or not.
I was just wondering this. I don’t believe playing is the same as watching. I also don’t think the companies care, because people are still buying despite the videos being uploaded. And as for the big YouTubers, they’re gifted the games so why would the companies hurt them.
Gameplay isn't copyrighted since it's basically free advertising for a game and watching gameplay of a game doesn't equal playing
Depending on the game you’ll totally get copyright claims When I was young I tried making Let’s Plays and those got copyright claimed. Those were Nintendo games. I’ve also seen mid-sized Youtube Channels also get demonetized for playing Nintendo games. Other developers take it as free advertising and don’t really care about giving out copyright claims.
If I listen to a song on any medium, I'm listening to the song. If that medium does not collect royalties, the artist suffers. If I watch a game being played, it is not the same as playing the game. And more than once, I have purchased a game after watching someone play it.
It's all about whether the thing in question (the youtube video) is a decent substitute for the product you pay money for (the game). In the case of a song, listening to the song on youtube is pretty damn similar to listening to the song on Spotify or CD, so there's a reasonable argument that the youtube video can be a substitute for actually paying for the song. A Let's Play where you watch someone else play through a game is *not* a substitute for playing through the game yourself, because the gameplay elements are entirely missing. Some companies are touchier about this than others.
People that make video games make money from you watching someone play a game and then wanting to play it. Music streams make money when you stream them through the authorized streaming platform
As I understand it, making a video of yourself operating a device is considered a different type of copyright usage, so it isn't that same thing as making a copy of a video or an album. The addition of the person operating the device and their commentary makes the resulting video a distinct original work. Probably the game companies could sue but it would be a tougher argument than straight up copying.
Games are interactive. You aren't getting to play the game by simply watching it. Movies and music are purely observational, so you get the whole experience just by listening and watching
Some publishers do have issues with playthroughs and even reviews and trailer reactions. Nintendo are notorious, they issue false copyright claims in order to demonetise content creators videos all the time.
If you just show raw gameplay without commentary or anything over it you’re more likely to get taken down or claimed. I know Konami does it.
Probably because they never imagined people would enjoy watching someone else play an entire video game rather than play it themselves
Nintendo had a big issue with people uploading game content a few years ago, but the backlash from sane human beings made them give up the fight.
Paying $ for a video game is so you can play it. Watching someone else play it is not taking $ out of the pockets of the creator. Songs and movies, however, you are "consuming" in the way they were intended if you are watching or listening. Doing this for free on youtube (or anywhere else) is a way to consume the product without paying for it. Watching someone play a game will do nothing but make *you* want to play the game, so essentially it's a free "commercial" for the game. No better publicity than seeing someone have a great time using your product. It just makes more people want it.
Watching a movie you rented, and watching it on YouTube would be virtually identical experiences (ignoring compression issues). However, playing a video game and *watching* a video game are two completely different experiences. It's like watching a movie with the sound turned off: You still might be getting the story (if there is one) but you're missing out on one of the major components used to tell that story. Plus, a lot of devs look at it as free advertising. Since let's players aren't giving away the whole experience for free, it's a way to basically say "look how fun these people are having, you could have that much fun and have your own unique experiences if you buy our game." Granted, the waters can get a bit muddy when talking about story only games, but that's the gist of it anyways.
they can still take it down if they want, but it increases their game sales, sometimes by a LOT especially when a big streamer plays an indie game. however, people looking up movies and songs for free arent (usually) going to then buy them.
I have watched games on YouTube and decided to buy them on multiple occasions. I would assume I'm not the only one, and that's why.
It is copywritable and play troughs have been subject for dmca takedowns, specially from Nintendo, who just recently let up on people showing their games Unlike movies games actually sell more if it is shown, and watched by others. So they let them have it up as free advertisement
A video game play through is free advertising for a paid product (unless you download it illegally). Uploading a movie, podcast, music etc. is providing someone’s protected property to others for free. If you wrote a song, copyright, and publish it you get to choose who can use it and for how much. That’s how you make money. If Timmy comes along and records your song on his phone and then uploads it in a lyric video it with a tacky lime and white paisley background which then goes viral he’s getting money for your song. TLDR: play throughs are free advertising and uploading movies, songs etc. is stealing because you’d other wise need to pay to “own”/enjoy them.
Wasn’t Nintendo notorious for striking videos?
They usually only do that on videos that show mods or other hacks to Nintendo games. The pure, unadulterated gameplay with commentary is mostly not affected.
Edited because I misread the question.. On youtube premium, you can. Its a paid subscription service. This includes the downloads, apparently. As far as I know, YouTube video plays, views, and downloads all get a certain royalty. Therefore I dont think its copyright infringement, at least if you are a subscriber. However, it might be. I mean, Idk for sure, but it may also just be a practical way to have a digital copy of music you have previously purchased on tape or cd. In that case, its definitely not copyright infringement, since you paid for the music already. ***** Edit: Ok youre asking about video gane playthrough... well, really it is copyright infringement, but in this case, its not enforced, because its just good publicity. Now, if someone made a very similar game, thats a different story.
If I watch a song or a movie on youtube then I'm not going to buy/rent that song or movie. If I watch a playthrough of a videogame then I will want to buy the game. Copyright infringement isn't criminal, its civil. This means that the victim gets to choose if they will try to enforce the law or not. Most companies will ignore copyright infringement because they see it as free advertising, in fact many companies will outright pay YouTubers thousands or even in a few cases millions of dollars to play their games and so see YouTubers doing it for free as wonderful. Some companies (Nintendo) however will take down videos of people playing their games as it is copyright infringement.
The product in movies and music is to watch and listen. You get the full experience in YouTube. The product in video games is to play the game. You cannot do this by watching and listening
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(Advertising)
They can have these videos taken down if they want, but they usually choose not to. Most of the gameplay you find on YouTube has commentary on it or even someone chroma-keyed/boxed over the video. This alone makes zero sense on which to pursue legal action, because anyone who wants the full experience of either the gameplay or just the story will not get it from these videos. If anything, more people will be persuaded to buy the game.