Bad news, YouTube fans: Let’s Plays aren’t actually all that legal.
Even after begrudgingly allowing Let’s Play videos of their games, Nintendo will still
periodically take down or demonetize a video they deem offensive with no warning whatsoever.
While the company is increasingly relaxed and supportive about YouTube content,
Nintendo’s legal team are completely within their rights to take down any videos that are
deemed inappropriate. Let’s Play videos, and much of YouTube’s gaming content in general,
is actually a breach of copyright law. First, a quick explanation: copyright exists,
as the name suggests, to literally give a creator the rights to control copies of their work.
Copyright is automatic, meaning you don’t need to apply for it before it takes effect.
Anybody who creates or publishes a copy of a copyrighted work without permission is
breaking copyright law, and will be held liable if prosecuted in a court of law.
There are some exceptions to this, such as making a copy for education or critique purposes,
but there’s a big restriction on these copies: you can only copy a small portion of a work.
So, for example, it would be illegal to photocopy and distribute an entire school textbook,
even for education purposes, but it is legal
for a teacher to copy a couple of pages and give them to the class.
Alternatively, an excerpt from a novel can be included in a newspaper article reviewing
the book, but the paper can’t publish the entire novel without permission.
The problem with this is that much of copyright law was written before computers existed.
Around the world, different countries have struggled to revise their
copyright to account for the internet. For example, debates have raged over
commonplace practices like web page caching – to even load a web page, your computer or phone
makes a copy of the page, and it’s historically been very difficult to decide whether this copy
counts as copyright infringement even if the technology is working as intended.
So, naturally, debate similarly rages over Let’s Play videos.
Some people like to claim that Let’s Plays fall under Fair Use because they’re transformative.
Players are creating a performance in a digital space, so that should be legal, right?
The problem is that a video game is more than just the sum of its parts.
All art assets and audio assets are copyrighted, and any video posted online
creates an illegal copy of the music, art, and sound effects within the game.
Any time you post a Let’s Play of a game, you’re publishing a
copy – and that can be a breach of copyright. What’s more, Let’s Plays don’t fall under Fair
Use because they reproduce large segments of a copyrighted work. A few seconds of gameplay is
fine, but half an hour of uninterrupted content is more difficult to justify.
According to Mona Ibrahim, a lawyer from the Interactive Entertainment Law Group:
“The amount of content used [in a Let’s Play] — the fact it goes to the heart of the game
itself — is way in excess of what any court up until now has said is fair use. You use too much
of the content for it to qualify for fair use.” So if Let’s Plays are illegal, why do games
companies allow fans to post these videos online? Well, just because the law states that a certain
behaviour is illegal, it doesn’t mean that the legal “victim” actually wants to exert their
rights. Many games studios actively encourage Let’s Plays, in spite of their legal position.
Let’s Plays are very good for business – games like Crypt of the Necrodancer, Hello Neighbour,
and of course, Five Nights at Freddy’s, all got their start thanks to free advertising on YouTube.
Other companies, like Nintendo and Sega, originally came down hard on copyright
infringement, as was their legal right to do so. Eventually, though, fighting these battles became
too costly – not in terms of legal fees, but also in terms of public perception.
Thus, Sega and Nintendo elected to stop pushing the issue and just let their fans
infringe copyright through Let’s Plays. That said, permission from game studios
doesn’t change the law, and developers are still in a position to prosecute
Let’s Players whenever they choose. The most famous case of this is Campo Santo,
who in 2017 decided to retroactively ban one prominent and…controversial…YouTuber
from publishing videos featuring footage from their game, the delightful Firewatch.
Now, while Campo Santo still allows Let’s Plays for most YouTubers, the company’s website states:
“Streaming and Let's Plays are implicit but revokable privileges,
and if you happen to be among the very, very, very, very few players who use your platform
to spread hate or harassment, we would prefer that you not use our games in your content.”
Similarly, other companies will periodically use the YouTube Content ID system to take down
Let’s Play videos that they don’t approve of, for whatever reason. In fairness,
if they wanted to, they could go one step further and take Let’s Players to court,
but doing so would be very costly, win a lot of negative press, and likely wouldn’t have any
lasting benefit to the companies. According to lawyer Bryce Blum:
“Publishers can revoke the license for any reason in their sole and absolute discretion, and there
is nothing in the DMCA that requires consistent enforcement on the part of the IP holder.
“Arguing against a takedown request by saying other, similar content isn't targeted
is like telling a cop that you shouldn't be busted for speeding because lots of
people speed without getting a ticket.” For now, most games companies are willing to
turn a blind eye to copyright infringement. It’s just not worth the effort to actually
fight this common form of piracy. So if you enjoy Let’s Play videos,
or you make them yourself, you don’t need to worry too much…for now.