Let's Play... and let's monetize!
http://www.nintendoworldreport.com/news/34810
Nintendo has seemingly reversed its stance on claiming copyright and ad revenue on Youtube videos that contain footage of their games.
ZackScottGames, a "Let's Player" who was the first person to bring Nintendo's controversial decision to light, has said that the claims on his videos have disappeared, and he is able to receive ad revenue.
“I saw the revenue return and I had no further claims made on any of my other videos since the news broke," says Zack. "So I took the leap of faith.”
NOA President Reggie Fils-Aime had recently defended the policy at E3, saying “The fans need to understand that we see the issue, we understand the issue, but, right now, all we’ve done is take the first step to protect our IP.” We have not received an official statement from Nintendo, but we will update this story once we do.
I still don't think fans should get to make money from other people's copyrighted work. You want to get paid money for playing others games and talking about it?
I still don't think fans should get to make money from other people's copyrighted work. You want to get paid money for playing others games and talking about it?
I still don't think fans should get to make money from other people's copyrighted work. You want to get paid money for playing others games and talking about it?
It's called value adding. Let Players are not being paid to showcase the content that's already in the game, they're being payed for the content they themselves produce. The people who watch these videos in huge numbers in most cases aren't interested in viewing the games, they watch these videos to listen to the commentary. The reason Let Players are able to generate ad revenue in the first place is because they are creating value where none existed.
I'm not saying video game companies are wrong in trying to protect their IP, but let's be honest, without the people and personalities producing these videos who would want to watch gameplay of Sonic 06 or TMNT for the NES?
I still don't think fans should get to make money from other people's copyrighted work. You want to get paid money for playing others games and talking about it?
Should websites like NWR get to make money from other people's copyrighted work?
Am I going crazy or has someone moved the modify button?
Am I going crazy or has someone moved the modify button?
It only seems to be in talkbacks and podcast discussion.
I take it you haven't seen any of CurtDogg's Backlogg?
And why is it you're only concerned with posting two hours worth of copyrighted video? Screen shots, box arts, sound files, art work, press releases - those are all copyrighted as well...
I still don't think fans should get to make money from other people's copyrighted work. You want to get paid money for playing others games and talking about it?So the NWR news segment should be shut down?
along with any ad revenue from visiting the podcast page and the forums...I still don't think fans should get to make money from other people's copyrighted work. You want to get paid money for playing others games and talking about it?So the NWR news segment should be shut down?
"Nintendo" is trademarked, not copyrighted. Also, Nintendo allows it because it falls within fair use and is not demeaning. The pics on the site are almost always provided by the publisher. It's not fair use to post 2 hours of video.
or 4. you happen to enjoy the commentator, which could bring you to 1. or you are a person that wasn't going to buy it anyways"Nintendo" is trademarked, not copyrighted. Also, Nintendo allows it because it falls within fair use and is not demeaning. The pics on the site are almost always provided by the publisher. It's not fair use to post 2 hours of video.
Semantics. Trademarks are protected as well and Nintendo has reason to keep their trademark strong.
Doesn't the publisher publish the game? Isn't any screenshot then released by the publisher?
These let's plays are no-more demeaning than a poor review or an opinion article about Nintendo's lack of creativity or poor choices, etc.
The video is not the product. The game is the product. Literally, someone could show themselves beating the game and I'm not entirely sure why Nintendo would want to limit it. I think it would be boring as crap and I wouldn't watch it, but I don't see how it would prevent people from buying the product. I've never thought I would rather go home and watch somebody play Wii U on the internet instead of playing the Wii U.
There are only 3 reasons to watch online. 1 - See if the gameplay is interesting and if I want to buy it (review) 2 - See how to beat a part in a game I can't figure out 3 - See an ending to a game that I can't/won't beat or has multiple endings and I don't want to play through it again. There is no watch somebody play the game in the entirety instead of purchasing. That's why the analogy to music/movies is a bad one. You get the entire product when you watch those.
[size=78%]Screens shots are also released promotionally and are more valuable because of news sites.[/size]
Virtually everything you create is copyrighted the moment you create it.
So, yes, press releases are copyrighted. This prevents CompanyX from taking CompanyY's press release, swapping the name brand of the product, then releasing it as their own.
As for screen shots - many news/reviews sites create their own screenshots - which would seemingly fall under the same type of copyright as these videos.
THISI still don't think fans should get to make money from other people's copyrighted work. You want to get paid money for playing others games and talking about it?
It's called value adding. Let Players are not being paid to showcase the content that's already in the game, they're being payed for the content they themselves produce. The people who watch these videos in huge numbers in most cases aren't interested in viewing the games, they these videos to listen to the commentary. The reason Let Players are able to generate ad revenue in the first place is because they are creating value where none existed.
I'm not saying video game companies are wrong in trying to protect their IP, but let's be honest, without the people and personalities producing these videos who would want to watch gameplay of Sonic 06 or TMNT for the NES?
Pictures fall within fair use, 2+ hour videos do not.
Pictures fall within fair use, 2+ hour videos do not. And if they want to upload just a audio file of their commentary, that would be legal and Nintendo would not do anything. Uploading a video makes it violate copyright laws though. If you say people watch for the commentary, then they should be willing to do it without video. If someone would not watch it without video, then they are paying for the video.isn't a video just a bunch of pictures(which you have already stated fall into fair use) moving in a predetermined sequence (fps) and an audio track(which you have stated is legal)?
Pictures fall within fair use, 2+ hour videos do not.
He is making money from the ads, which is that company paying him. It's a shady area, but not as bad as the LP.
You use hyperbole to try and make a comparison that is not valid. You would not be making money from the program. It's already been established law that using a program legally to do something illegal doesn't make the program at fault.
I didn't say profit makes it legal or not. Though companies are more likely to ignore you if you do it for free (though companies can, and have, gone after free uses too).Heavily implied ("It changes if you try to profit...")
Nintendo is not profiting from someone else's work. They are profiting from their copyrighted video being used. If Company B makes illegal copies of Company A's work, Company A can legally get all the profit Company B made from it.
And someone else brought up the claim that pics used here (or other sites) would be the same, so I said that pics are generally fair use (though if you have hundreds of pics from the same game, that may no longer be considered fair use).
And I never said video in general is not fair use, but a 2 hour video is not (fair use would be more like 5 minutes).
And I never said video in general is not fair use, but a 2 hour video is not (fair use would be more like 5 minutes).
You need to stop making up numbers because until a legal case is brought on YouTube and Let's Play players nobody has any idea the exact length that would constitute fair use. It could be 5 minutes or 2 hours.
Yesterday, Gamasutra and other news sources reported on Nintendo's claiming YouTube ad revenues for videos featuring gameplay footage (http://gamasutra.com/view/news/192279/Nintendo_cracks_down_on_fanmade_videos.php). Nintendo explained that "for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips." Apparently, in practice, what this means is that certain YouTubers who were monetizing extended Nintendo gameplay videos will now lose their advertising income stream. Instead, YouTube will share those revenues with Nintendo.
If you worked to create a video channel and a YouTube subscriber base only to have Nintendo grab your ad revenues, would you be happy about this? No, you wouldn't. Zack Scott (http://www.youtube.com/ZackScott), a YouTuber with over 200K subscribers, isn't happy. On his Facebook page, he explains (https://www.facebook.com/ZackScottFans/posts/10151890122200130) (to a growing chorus of over 8K "likes") that he's giving up on making any more Let's Play videos for Nintendo games: "I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers."
As Gamasutra reports (http://gamasutra.com/view/news/192279/Nintendo_cracks_down_on_fanmade_videos.php), other LPers (Let's Play creators) are upset too. But the claim they make isn't just that they're being deprived of their livelihood. They also complain, like Scott, that Nintendo is betraying its "fans" and shooting itself in the foot. A common theme is that Let's Play videos provide "advertising" for Nintendo, building interest in their games and helping to sustain the community of enthusiasts. (In a similar vein, see this article on game modding (http://firstmonday.org/ojs/index.php/fm/article/view/2972/2530) by Hector Postigo.) To put it simply, if Nintendo cuts off Zack Scott's income stream and Scott stops making walkthroughs of Nintendo games, it's Nintendo that loses.
So why would Nintendo shoot itself in the foot? The answer can be summed up in two words: intellectual property.
As a co-director of the Rutgers Institute for Information Policy and Law (http://riipl.rutgers.edu/), my day job is teaching and researching how intellectual property law applies to new technologies. I also have a particular affection for the law and business of video games. So I'm going to break the IP issues here down, as briskly as I'm able, in four component steps: 1) YouTube, 2) copyright, 3) trademark, and 4) IP policy.
1. YouTube
First off, I think it's interesting that much of the media coverage of this situation is simply pitting the Let's Play creators against Nintendo. This conveniently lets the technological behemoth that is YouTube float in the background in soft focus. But YouTube should really be front and center in this dispute. Consider: YouTube created the various "livelihoods" at stake by starting its Partner Program; YouTube orchestrates and directly profits from the advertising monetization of Let's Play videos; it is YouTube's Content ID technology that is helping Nintendo to locate gameplay videos; and finally, Nintendo could never have usurped Zack Scott's ad revenue streams if YouTube didn't enable that action. YouTube is smack in the middle of this dispute, and it is playing on both sides of the field.
But, in a way, that's a legally mandated position for YouTube, if YouTube wants to stay in the good graces of the copyright regime. From the standpoint of intellectual property law, YouTube's actions as an intermediary are primarily governed by the rules of the Digital Millenium Copyright Act, and 17 U.S.C. 512(c) (http://www.law.cornell.edu/uscode/text/17/512) in particular. As an online "service provider" under that statute, YouTube can be shielded from liability for the copyright infringements of its users, but only so long as it complies with the "notice and takedown" requirements of the statute. This means that when a copyright holder informs YouTube that a particular video infringes its rights, YouTube must "expeditiously" disable public access to that content. YouTube must also comply with many other requirements of Section 512. For instance, it must terminate account holders who are repeat infringers and must accomodate "standard technical measures" that relate to copyright policing.
So, essentially, in order to benefit from the "safe harbor" of Section 512, YouTube is required by law to play nice with the copyright industries. Apparently, in this case, YouTube has made the decision that playing nice means that Nintendo, not Zack Scott, is the rightful owner of the advertising revenues that are generated by Zack Scott's Let's Play videos. As YouTube states in its monetization policy (http://support.google.com/youtube/bin/answer.py?hl=en&answer=2490020), "Videos simply showing game play for extended periods of time may not be accepted for monetization."
So YouTube owns its platform and it can run the platform as it sees fit. But is giving Nintendo the advertising revenue stream here the right call as a matter of copyright law? That's a tricky question.
2. Copyright
Among the general public, copyright law is an increasingly familiar concept. Still, that doesn't make copyright "ownership" any less weird as a theoretical matter. We know what it means to own a physical item, but when we say Nintendo "owns" fictional characters such as Mario, Toad, and Princess Peach, what does that mean?
From the standpoint of copyright law, "ownership" means that Nintendo has the exclusive right to reproduce and distribute copies of the many works that incorporate those particular characters. Nintendo also hold the exclusive rights to adapt those works into new forms of media and to "perform" those works publicly. You can find these and other exclusive rights (there are six in total) in the copyright statute at 17 U.S.C. 106 (http://www.law.cornell.edu/uscode/text/17/106). In theory, a Let's Play video could infringe upon several of those rights. The uploaded videos (arguably) reproduce Nintendo's work, perform it publicly, distribute it, and may even create a "derivative work" based on it.
But does that mean that all unauthorized uses of recognizable Nintendo works on YouTube are always infringing? No. Indeed, it's notable that, in its statement, Nintendo referred to "Nintendo-owned content, such as images or audio of a certain length." That's a curious qualification for Nintendo to make as the copyright holder -- why "of a certain length"? I think Nintendo is probably admitting that short clips of gameplay footage, when used in the context of commentary or criticism, are not subject to Nintendo's exclusive control. This is because the copyright statute, at 17 USC 107 (http://www.law.cornell.edu/uscode/text/17/107), makes it clear that the public has a right to "fair use" of copyright-protected works. This means that, without Nintendo's authorization, the public, in certain circumstances, is entitled to use Mario, Toad, and Princess Peach "for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research."
So doesn't that apply directly to Zack Scott? Isn't a Let's Play video a form of commentary or criticism under Section 107? Maybe it's even a form of "news reporting" or "teaching"?
Perhaps, but the case law on fair use makes it clear that not all uses of a work in "commentary, criticism, news reporting", etc., will be fair use. It's certainly possible to use a work and comment upon it, yet to use too much of the work and thereby exceed the protections of the fair use doctrine. For instance, I could not republish the entire first Harry Potter book with a few additional comments added, and claim that act of reproduction as a legal fair use. It may be that Nintendo believes game play videos "of a certain length" will be categorically outside the bounds of fair use and should be exclusively within its control.
Nintendo may believe that, but I'm not so sure. As Zack Scott puts it: "Video games aren't like movies or TV. Each play-through is a unique audiovisual experience." I think that's just right -- the peformance of a video game is something different than a clip from a movie. It could be argued that footage of original and creative game play -- even extended footage of creative game play -- constitutes a form of "transformative fair use" under copyright law. A very recent case in the Second Circuit, Cariou v. Prince (http://newsandinsight.thomsonreuters.com/New_York/News/2013/04_-_April/Analysis___Landmark__ruling_says_commentary_not_needed_for_fair_use_defense/), might be understood to support this argument. Following that case, if the aesthetic appeal of a Let's Play video is perceived as fundamentally different than the appeal of the interactive game, fair use might actually exist.
I'm hardly certain that the average federal court would accept that argument, but I do know that such evolutionary twists and turns are common in the law of fair use, which is notoriously unpredictable. Indeed, I think part of what may be motivating Nintendo's move here is the concern that the unauthorized monetization of gameplay video performance is rapidly becoming the "new normal." Nintendo may be concerned that if it doesn't assert its copyright interests, courts will ultimately start to accept the practice of monetizing unauthorized game play footage as a conventional form of fair use. And that sort of rule could have significant repercussions for the emerging North American pro-gaming scene. (As a point of comparison, see, e.g., T.L. Taylor's discussion of Blizzard's dispute with KeSPA in her new book (http://mitpress.mit.edu/books/raising-stakes).)
3. Trademark
Although copyright is the IP language being used by all the parties here, it's worth pointing out that Nintendo's IP rights aren't limited to copyright: Nintendo also claims trademark rights in Mario, Toad, Princess Peach, etc. (The "Princess Peach" trademark is at Reg. Serial No. 85,497,172, if you want to look it up.) In theory, trademark law is narrower in scope than copyright law. Trademark is intended to protect consumers from being deceived about the source of the goods and services they find in the marketplace. And personally, I don't think most people watching a Let's Play video featuring a Nintendo game are going to be confused about the origin of the video. In other words, I doubt anyone would presume Zack Scott's videos are the works of an employee working for Nintendo.
However, in recent years, some trademark owners have become much more aggressive about their IP rights. Some have sued, for instance, filmmakers who make humorous references to their products without authorization (http://www.hollywoodreporter.com/thr-esq/louis-vuitton-hangover-2-lawsuit-338650). Statutory expansions in the legal protection of brands, such as the Trademark Dilution Revision Act (http://en.wikipedia.org/wiki/Trademark_Dilution_Revision_Act), may apply to famous video game characters, such as Mario and Luigi. For better or for worse, many trademark owners feel legally obliged to actively police against unauthorized commercial uses of their brands. This means that concerns about Nintendo's trademark interests, as well as its copyright interests, may explain Nintendo's efforts to limit the emerging business models of Let's Play monetization.
In summary, while Nintendo may indeed be shooting itself in the foot by grabbing the revenues from YouTube Let's Play creators, it may think this short term sacrifice makes sense in the long term. Nintendo may be willing to shoot itself in the foot today rather than allow unauthorized monetization to shoot it somewhere closer to the heart in the future. Nintendo may see today's Let's Play monetization as the tip of a looming user-generated iceberg. It may view the loss of "free" advertising as preferable to the loss of exclusive control over the performance of its games and its associated brand.
4. Policy
Finally, I'll want to add a brief appeal to you, the reader. Nintendo might be making a mistake, but it is surely pursuing what it believes is best for its own interests. But in the context of IP rights in video games, what do you think is in the best interest of the public? What should be the scope of intellectual property rights in video games?
This isn't just an idle question -- it is a matter that is being debated in Congress right now. The day after Zack Scott complained about Nintendo's YouTube actions, a Congressional subcommittee was considering how copyright law might be better adjusted to our new digital era (http://www.forbes.com/sites/derekkhanna/2013/05/07/house-judiciary-subcommittees-first-copyright-hearing/). Copyright law is hardly set in stone. Periodically, Congress rewrites the copyright statute in very significant ways. It seems that a new balancing of digital copyright law is on the horizon in coming years. But in the case of new media, what should that balance be? Would we be better off in a world where Zack Scott could monetize Nintendo games in Let's Play videos to his heart's content? Or is it better if Nintendo has the right to sue unauthorized Let's Play creators for statutory damages?
At present, I'm trying to come up with my own answers to that question, in part by gathering data about the extent of contemporary creative practices surrounding games and other new media. As part of a project funded by the National Science Foundation, I'm doing research on the extent and nature of user creativity online (http://player-authors.rutgers.edu/2012/12/30/first-post/). I'm looking at YouTube and many other forms of game-related creative production. So, if you have a second, I'd be very interested in knowing about your own creative practices related to video games. I've posted a survey online here (https://camdenrutgers.qualtrics.com/SE/?SID=SV_0VzeOA1fJHthpkN). My research team hopes to publish the results of the survey, as well as other research from the project, by the end of the summer. And in the meanwhile, I'd be interested in hearing your thoughts about the rights and wrongs of the Nintendo / Let's Play kerfuffle in the comments below.
Nintendo may believe that, but I'm not so sure. As Zack Scott puts it: "Video games aren't like movies or TV. Each play-through is a unique audiovisual experience." I think that's just right -- the peformance of a video game is something different than a clip from a movie. It could be argued that footage of original and creative game play -- even extended footage of creative game play -- constitutes a form of "transformative fair use" under copyright law. A very recent case in the Second Circuit, Cariou v. Prince (http://newsandinsight.thomsonreuters.com/New_York/News/2013/04_-_April/Analysis___Landmark__ruling_says_commentary_not_needed_for_fair_use_defense/), might be understood to support this argument. Following that case, if the aesthetic appeal of a Let's Play video is perceived as fundamentally different than the appeal of the interactive game, fair use might actually exist.
Video game walkthroughs and tutorials with commentary
Even though video games are copyrighted, it is now a widely accepted practice on YouTube to post walkthroughs and tutorials ("let's plays"). Both the player's original commentary and the fact that their gameplay creates a unique subjective experience with the game make the use transformative. As long as you include your own original commentary about the game and don't just post straight raw footage from the game, it is likely fair use. It is possible that even un-commented gameplay is still fair use, though this is less certain.
I wouldn't use that article as any kind of legal standing, it's the opinions of whoever wrote that (who I extremely doubt have any knowledge of copyright law).
So... What were some of the details on these past cases? Like, can you remember specific companies involved? Defendants? Any specific game titles?
Actually there is an fair use education rule, BUT you can' profit directly OR indirectly. As soon as that happens... it doesn't count
Half my teachers in high school did just that because the school was too poor to afford books for everyone.
Half my teachers in high school did just that because the school was too poor to afford books for everyone.
Mine did something similar, although a tad strange. The homework for most classes were the textbook questions copied right out of the book, because we couldn't take the books home. I guess that means there was enough per class but not per student.
