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Why have a policy on Let's Play videos when fair use already covers them?
E. Zachary Knight
May 16, 2013
4 Min Read
Originally Published on Divine Knight Gaming.
Earlier today, the news started circulating that Nintendo plans on monetizing videos that feature its video games. Not all videos mind you, just videos of certain unspecified lengths. Here is Nintendo's statement to the website Go Nintendo:
As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, 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. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property. For more information please visit http://www.youtube.com/yt/copyright/faq.html
It quickly became apparent that this was going to impact Let's Players, or people who record and publish walkthroughs, tutorials and other lengthy game related material on Youtube, the most. Many Let's Players and Nintendo fans were justifiably upset by this move from Nintendo. It seems that Nintendo underestimated its fans and how they would react to this move.
In response to this, Lars Doucet, the creator of Defenders Quest, started a list on Reddit of various game companies and their stance on the creation and monetization of Let's Play videos. We quickly added our names to this list, although we have yet to release a game of any significant size. However, we seem to be in the minority in our stance of not having a written policy on this matter. I want to take a few minutes to explain why.
At Divine Knight Gaming, we believe strongly in Fair Use, or Fair Dealing in some countries. Fair use is a limit on the control that copyright holders have on the content they create but sell to fans. With fair use, someone can buy or otherwise legally obtain a copy of something covered by copyright, and the holder of that copyright is limited in what they can tell the customer in regards to what they can and cannot do with it. This fair use is one of the reasons why we have things like game rentals and a used market. It also covers other uses of games such as creating video reviews, walkthroughs and such. The key to fair use is that you either aren't making a full copy of the work, or that what you do copy is limited in scope as to not infringe on the market for the original.
If you want to read more about fair use, you can check out the fair use clause of US Copyright law.
But for us, we don't think that creating a video of you playing our game is anything but fair use. How can it not be? You are not creating direct copies of our games. So you are not infringing our right to be the sole distributor of our game. The videos are clearly transformative. Meaning, it is not a substitute for people buying our game as watching a video is a vastly different experience than actually playing it. Additionally, the majority of let's play videos include content, such as commentary, that is not created by us. That is the copyright of the person creating the video. We provided a canvas, they made the painting. That is how we see it.
So why not write up an explicit license or statement allowing for such use? Because it is not in our right to grant you permission to do something in which you have a legal and natural right. That would be like me giving you permission to breathe or eat. We couldn't stop you if we wanted to. Even if we wanted to, we would have no right to prevent you from doing it.
Of course, some people seem to side with Nintendo on this issue. But we can't. Nintendo, while it created the games featured in the videos, has no right to the other creative aspects of the uploader. They did not write and record the commentary. They did not chose which scenes or in which order to include. They did not chose the sequence of actions of the player character. They provided a canvas for which they were legally and justly compensated for when the let's-player bought the game. That is the extent of their claim.
So, if you are interested in creating videos featuring any of our current or future games, we are not going to give you permission. You don't need it. Your desire to create is all that is required.
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