Let's Play...copyright issues

G

Gillvane

Veteran
Someone I know does let's play videos. This is a genre of youtube video that has grown tremendously over the last 5 years or so. If you don't know what let's play is here's some examples:


http://www.youtube.com/results?sear...6j4.10.0...0.0...1ac.1.11.youtube.QRBrokzbbUc

Basically you video youreself playing a video game. Some are walkthroughs, like a how to get through difficult parts fo the game, but others are just people playing video games and saying funny s*%t.

Some of the most successful "let's play" producers have been making some pretty good money from their youtube channels.

The thing that is surprising to me is that about a month ago Nintendo told youtube that all the let's play videos with Nintendo content belongs to Nintendo. So they can still have advertisement and they won't be taken off of youtube for copyright infringement, BUT now teh ad revenue has to go to NINTENDO and not the producers fo the let's play videos.

This has been pretty standard for music for a long time. You can make a video and use any popular music you want to for the most part. Youtube won't take the video down, they will just run banner ads on your video and the owner of the music track gets teh revenue.

But this is new, that a video game producer would start claiming all the rights to video game footage.

I just thought this was an interesting case in the development of youtube and intellectual property rights and something unexpected.

Here's an article from the gaming community:

http://kotaku.com/nintendos-lets-play-drama-might-have-a-happy-ending-513818999
 
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With music it really depends on the specific copyright holders. Many of them are getting more aggressive about simply taking everything down, regardless of who's getting the ad revenue.

You heard about the copyright holders of the German film "Downfall" requesting all of the "Hitler Ranting" videos be taken down? They conveniently waited about 3 years to do that after YT made their relatively unknown outside Germany film an internet hit.
 
Interesting developments. Thanks intrinsic pictures and adkimery for posting. Many people have grown up with youtube but it's still relatively new technology and all the IP issues are still being worked out.

I've seen SO many hitler videos and I certainly wouldn't even know about the original movie if not for teh spoofs.

I think Lucas Films got it right years ago. Yes, you COULD shut down all the fan films because you own the IP, but really it's the best free advertisement you can get so why cut your nose off to spite your face?
 
This does seem a change in tactics. Clearly, they do have the right to do this, and the people who have been making money were in the wrong - but surely like the Locasfilm situation above, this must benefit Nintendo? Removing the income generation from the users isn't going to generate brand loyalty is it?

Sadly, though, it just adds to the public feeling that copyright control is BAD, and freedom to do what you like is GOOD. None of our Governments seems to think it worth looking at properly, so it adds to the mess!


Just thought - how many of use visit Creative Cow and others to find out how to achieve specific effects? Problems for the future?
 
I am curious about how clear their right to do this really is. It's not exactly the same situation with music or video footage. Yes, the game content was produced and is owned by them, but the gameplay itself is not. That footage would not exist were it not for the player, they are a part of the content in the YouTube videos. It's not like they are simply recording a demo level that Nintendo pre-programed. Also, the commentary is the property of the creators as well, Nintendo certainly has no rights to that portion of the content.

I fully realize I'm splitting hairs a bit, but that's what the law is all about. It will be interesting to see how this plays out.
 
Nintendo actually does NOT have the right to make money off of a video created by somebody (let's call this person "Gamer"). They do have the right to block Gamer's video from Youtube for infringing on their copyright (in the video game). But Gamer owns the copyright to Gamer's video - which is basically a derivative work.

From 17 U.S.C. § 101 - Definitions

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
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So.... Gamer infringes on Nintendo's work and makes money. Then Nintendo infringes on Gamer's work and makes money (which Gamer no longer makes). What Nintendo should be doing (and what Youtube should create a system for, if they haven't already) is to contact Gamer and offer a revenue sharing deal. It could easily be automated and it would address all the copyright issues.
 
keylight said:
Nintendo actually does NOT have the right to make money off of a video created by somebody (let's call this person "Gamer"). They do have the right to block Gamer's video from Youtube for infringing on their copyright (in the video game). But Gamer owns the copyright to Gamer's video - which is basically a derivative work.

From 17 U.S.C. § 101 - Definitions



So.... Gamer infringes on Nintendo's work and makes money. Then Nintendo infringes on Gamer's work and makes money (which Gamer no longer makes). What Nintendo should be doing (and what Youtube should create a system for, if they haven't already) is to contact Gamer and offer a revenue sharing deal. It could easily be automated and it would address all the copyright issues.
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Copyright doesn't actually work that way.

Let's say you make a music video just for fun and then use a popular song as the music like Beyonce or U2 or whatever, then you put it on youtube.

What happens? All the video is your original content, but youtube puts ads on your video and all the revenue goes to the artist, not you.

I agree with your idea that a revenue split would be more fair since both parties are contributing, however I don't agree that youtube CANNOT do this. You have the right to yank your video because you don't want Beyonce or U2 to make money off of it, but you agree to those terms when you put up the video.

Also, Beyonce or U2 do not HAVE to let you use their music. They can let you use it and run ads for money and put a link to purchase their song, OR then can simply make you take it down and some artists do, just depends on their deal and what record company owns the IP.

So what's probably more accurate is not that Nintendo is infringing on the gamers IP because Nintendo didn't post the video, but that the gamer is agreeing through the youtube TOS to give Nintendo the ad money in exchange for using the game. Or, you can stop making Let's play videos.
 
danjenkins said:
I am curious about how clear their right to do this really is. It's not exactly the same situation with music or video footage. Yes, the game content was produced and is owned by them, but the gameplay itself is not. That footage would not exist were it not for the player, they are a part of the content in the YouTube videos. It's not like they are simply recording a demo level that Nintendo pre-programed. Also, the commentary is the property of the creators as well, Nintendo certainly has no rights to that portion of the content.

I fully realize I'm splitting hairs a bit, but that's what the law is all about. It will be interesting to see how this plays out.
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I think what' you're missing is that Nintendo did not post the video. Nintendo didn't capture your game play, then tell you we're going to use that to sell video games without your permission. If they did that you'd be right, they'd be violating your original content rights.

Instead, the gamer is the one posting the video. Nintendo simply says ok, you can post that video of your gameplay if you give us the ad money, otherwise you can't use our game IP. The gamer can accept that deal or not by simply not posting a game video.
 
paulears said:
This does seem a change in tactics. Clearly, they do have the right to do this, and the people who have been making money were in the wrong - but surely like the Locasfilm situation above, this must benefit Nintendo? Removing the income generation from the users isn't going to generate brand loyalty is it?

Sadly, though, it just adds to the public feeling that copyright control is BAD, and freedom to do what you like is GOOD. None of our Governments seems to think it worth looking at properly, so it adds to the mess!


Just thought - how many of use visit Creative Cow and others to find out how to achieve specific effects? Problems for the future?
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I get what you're saying. What if Adobe or any other software producer says hey, wait a minute. That's our software. If you sell a tutorial (or used advertising on your site) with After Effects or whatever and use our software on the screen, that' money belongs to us. Good point.
 
keylight said:
Nintendo actually does NOT have the right to make money off of a video created by somebody (let's call this person "Gamer"). They do have the right to block Gamer's video from Youtube for infringing on their copyright (in the video game). But Gamer owns the copyright to Gamer's video - which is basically a derivative work.
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But a derivative work is not the property of the gamer. The original copyright owner owns all derivative works too. That's how copyright law works. Unless the copyright owner specifically assigns away their right to it.

Put it this way -- try writing your own "Twilight" novel and see how far you get... Stephenie Meyer and/or her publisher own the rights to her characters and all derivative works they'd appear in. You can't write your own "fan fiction" and sell it. Paramount used to sue anyone and everyone who tried to do anything in the Star Trek universe, for example.
 
Barry_Green said:
But a derivative work is not the property of the gamer. The original copyright owner owns all derivative works too. That's how copyright law works. Unless the copyright owner specifically assigns away their right to it.

Put it this way -- try writing your own "Twilight" novel and see how far you get... Stephenie Meyer and/or her publisher own the rights to her characters and all derivative works they'd appear in. You can't write your own "fan fiction" and sell it. Paramount used to sue anyone and everyone who tried to do anything in the Star Trek universe, for example.
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I agree with almost everything you write about Barry, but the author of the original copyrighted work absolutely does NOT own the copyright to the derivative work. The original author only owns the copyright to the underlying work, which was infringed upon by the author of the derivative work infringed in the making the derivative.

The author of the original can sue to enforce their copyright, issue takedown notices... but they cannot take the derivative work and make copies, distribute, broadcast..... That would infringe upon the derivative author's copyright.

The original copyright owner can say to the derivative owner, "I grant you permission to use my copyrighted work in your derivative, if you grant me the right to distribute your work." Or more to the point in the case the OP presents, "I grant you permission if you let me put advertisements in front of it so I can profit from it."

So the derivative owner has a choice. They can:
  • accept the ads (and the ad revenues going to the original owner who makes that offer, which seems to be what's essentially happening now, per the OP)
  • remove the derivative work (in which case nobody makes profits)
  • reach agreement to share the profits (unlikely, but if the derivative was extremely popular and profitable, it could happen)
One of the rights that comes with owning a copyright, is the right "to prepare derivative works based upon the copyrighted work" - that's from §106. Exclusive rights in copyrighted works. To write a derivative work is to infringe on their copyright. But the Copyright laws (in the US) don't transfer the rights of infringing derivative to the copyright owner of the original. They simply give the owner control over who can legally make non-infringing derivatives.

17 U.S.C. § 103(b) really clarifies this (emphasis added):

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
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EDIT: This is a very interesting article on the direction fan fiction is headed in, that drives right in to the whole derivative works issue:

Amazon Unlocks The Value Of Fan Fiction With 'Kindle Worlds' (a very short excerpt):

A new program called Kindle Worlds will let would-be writers publish, and profit from, fan-fictional e-books with the blessing of the original characters’ creators, who will receive royalties from every sale. Call it a sort of open API for IP.
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All right, yes, I greatly abbreviated. Let me say it a slightly different way -- a person who makes an unauthorized derivative, has no rights to that work, to do anything with it. Because they do not have the underlying rights, all rights to make a derivative vest with the original copyright holder. The original copyright holder is the only one authorized to make derivative works.

If you wrote your own Twilight novel, and tried to register the copyright, I doubt the feds would register it. And I would suspect that even if they did, that copyright would be invalidated in a New York second in any trial, once it becomes obvious that the work is an unauthorized derivative.

Would the original work's owner then have the right to seize and distribute the derivative? Hmmm, probably not, unless as part of the damages claim the court awarded the plaintiff all rights to the infringing work, which -- that's getting above my pay grade.

Could you make a derivative work? Certainly. Could you make an unauthorized derivative work? Certainly. Could you DO anything with that unauthorized derivative work? I very much doubt you could. It'd be like building a house on someone else's land -- you simply don't have the right to do so. And you absolutely couldn't sell that house to someone else, because you'd be trespassing on their land. The net effect of making an unauthorized derivative work is to create something that you have no rights to, which means it's a whole lot of wasted effort.

The quote you listed from the copyright code should be viewed in its proper context -- that would be for an AUTHORIZED derivative work. Yes copyright can be claimed in an AUTHORIZED derivative work. But what Nintendo and others are complaining about are unauthorized derivative works -- and I may be wrong, but I don't think the creator of an unauthorized derivative has any manner of leg, or even stump, to stand on.
 
My son's into these games and in the games world the people are furious about Nintendo's attitude and there's a boycott being organised with these games being available on other platforms, so all the 'how to' videos are being continued on the other brands's products. I didn't realise the gaming community were so angry, but they are!
 
As an artist I know copyright quite well since I'm filing with the copyright office often. For instance if you stick someone's painting into a film hanging on a wall in the background, you better have permission or have paid a licensing fee for the use of it. Or you'll be dragged into court which the fines for a single copyright infringement are quite large too. The video gamer video is no different.

The gamer and his surrounding are his images, however all images and content that are on the screen are owned material of the game company. Now if he did an animated interpretation in a tutorial, that would be ok. It's fully in the right for Nintendo to exercise their copyright ownership if they choose too, however it's really free advertising for them. Though at the end of the day they have a right not to endorse this approach. Copyright law isn't that complicated, it's actually pretty cut and dry in most cases.


M.L.Pappas
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PappasArts said:
As an artist I know copyright quite well since I'm filing with the copyright office often. For instance if you stick someone's painting into a film hanging on a wall in the background, you better have permission[...]
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In your example of the painting in a film, I'm curious if it would have to be completely blurred, rendering it unrecognizable, or just to a certain point in order to avoid a copyright violation. If only to a certain level, what is that exactly?
 
Jordan_S said:
In your example of the painting in a film, I'm curious if it would have to be completely blurred, rendering it unrecognizable, or just to a certain point in order to avoid a copyright violation. If only to a certain level, what is that exactly?
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If the artist can identify the work as his/her own, then you can't use it (i.e. it is protected). Same with people in films that weren't released. They have to be blurred enough so that in a court of law, THEY can't say, "That's me." The threshold is not you saying, "I can't recognize that person." Any time we shoot a commercial, the painting MUST be completely released (as noted previously). Heck, just take a look at all of the real estate and home renovation shows on tv. The background is full of blurred images.
 
Jordan_S said:
In your example of the painting in a film, I'm curious if it would have to be completely blurred, rendering it unrecognizable, or just to a certain point in order to avoid a copyright violation. If only to a certain level, what is that exactly?
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cyclone said:
If the artist can identify the work as his/her own, then you can't use it (i.e. it is protected). Same with people in films that weren't released. They have to be blurred enough so that in a court of law, THEY can't say, "That's me." The threshold is not you saying, "I can't recognize that person." Any time we shoot a commercial, the painting MUST be completely released (as noted previously). Heck, just take a look at all of the real estate and home renovation shows on tv. The background is full of blurred images.
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Cyclone pretty much answered it Jordan.


M.L.Pappas
http://PAPPASARTS.WORDPRESS.COM

http://TWITTER.COM/PAPPASARTS

[size=+1]BlackMagic Digital Camera Info:[/size] http://www.bmcuser.com/showthread.p...mera-Technology-Announcements-amp-Latest-Info
 
paulears said:
My son's into these games and in the games world the people are furious about Nintendo's attitude and there's a boycott being organised with these games being available on other platforms, so all the 'how to' videos are being continued on the other brands's products. I didn't realise the gaming community were so angry, but they are!
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Yep, the gaming community is pretty upset. I think that more than likely Nintendo would win any copyright claims hands down. It's their IP, their game, and no one has the right to use it for a walkthrough, tutorial, or entertaining video without permission from Nintendo.

However, if Nintendo is smart they will take the same approach as Lucas Films does with fan films, and come to the conclusion that Let's Play videos are not a threat to their IP and actually increase sales and it's probably a better business strategy not to upset your customers.

Apparently UbiSoft is allowing Let's Play within certain guidelines. Probably they'll come after you if there's anything obscene, pornographic, or trashing the game, otherwise it's all good.

http://en.wikipedia.org/wiki/Let's_Play_(video_gaming)
 
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