The legality of Let’s Play
On Jan 29 Nintendo rolled out it’s Creator’s Program, “designed for people who post videos to YouTube that contain Nintendo intellectual property,” sharing revenue between Let’s Players and the Japanese video game company.
The advertisement revenue share for users is 70 percent for channels exclusively posting Nintendo content and 60 percent for individual videos.
Let’s Play is video content of a person or people playing video games with their own commentary, which sometimes is totally unrelated to the game.
The Nintendo program has raised the ire of the prominent Let’s Player (and local Brighton celebrity) PewDiePie, who has over 35 million subscribers. He conceded that “they have every right to do this and any other developer and publisher have as well,” but suggested that what Nintendo are “missing out on completely is the free exposure and publicity that they get from YouTubers.”
Arguments for the legality of Let’s Play commonly centre around Fair Use laws. Factors for consideration in Fair Use include whether use is of commercial nature or is for nonprofit educational purposes, the amount and substantiality of the portion used and the effect of the use upon the potential market for, or value of, the copyrighted work.
A more traditional game, which derives pleasure from challenge and skill will often be non-linear and seems suitable for transformative commentary and play.
Notable examples of fodder for ‘let’s players’ include Goat Simulator and Five Nights at Freddy’s; games symbiotically act as tools for Let’s Players to scream and shout, and then thrive off of the attention. Every experience of these games will be slightly different, and they do not substitute playing the actual game.
On the other hand, watching a Let’s Play of a game like Life is Strange is an altogether different experience. The ‘let’s player’ will more often than not be silent as the game does the talking, and they are far more linear than an RPG or sandbox game. It would be like uploading the new Inherent Vice movie, occasionally mumbling things over the quiet bits, and passing it off as Fair Use. Watching a full playthrough of Life is Strange or Telltale’s Walking Dead could be a substitute for purchasing the copyrighted work, which is illegal.
Smash Bros Brawl had a sprawling story mode with epic cut scenes but when they were uploaded online it was felt that spoilers cheapened the scenes’ effectiveness as rewards. Nintendo took this seriously and chose to upload all the cutscenes for Smash Bros 4 online, before the game came out.
The being said, perhaps it is wrong to suggest that a carefully constructed story told through gameplay being reproduced and spoken over is more acceptable than doing the same with a story told through traditional filmic means.
Take the game Shadow of the Colossus: a beautiful and sombre game about a boy wandering an ancient wasteland with his horse, hunting and destroying colossi. Simply because this game has few cut scenes and little dialogue, does that mean it is okay to record and distribute a playing of a game, even if it does have a couple of people gossiping and making fart noises over it?
Nintendo, who have a particularly old fashioned outlook on gaming, and may consider spoiling the experience of exploring the original legend of Zelda as significant as spoiling a cut scene driven, linear game.
For Five Fights at Freddy’s, let’s play videos boosts sales as people want to experience the scares for themselves, and a walkthrough of a story driven game might hurt sales. A typical Nintendo game falls in the middle of that spectrum, and considering that, Nintendo’s solution seems to be an apt compromise between the extremes of freely allowing Let’s Play and issuing copyright strikes.
Some indie developers have abused copyright strikes, with Jim Sterling’s harsh criticism of the game ‘Slaughtering Grounds’ being temporarily taken down by a DMCA claim. Sega automatically detected use of the game Shining Force across YouTube, giving strikes and even causing some channels to be permanently closed down. Nintendo’s plan seems to follow the book in a way these companies do not.
As long as Nintendo remains consistent and only enforces this policy when it comes to Let’s Play (and not reviews), their approach seems perfectly legal. It might be bad for PR but, as PewDiePie said, “they have every right to do this.” At the same time, it is worth ‘let’s players’ to consider how transformative their work is, and ditch the free advertisement excuse when they do fall short.