Hopefully, this article can help you make sense of the copyright issues related to the uploading of Let’s Play videos of YouTube. Let me know if I’ve missed anything important.
1. Do I have the right to upload Let’s Play videos?
Except in cases where 1) the terms of service of the game allow for this OR 2) you have received permission from the game’s developers, you do not automatically have such a right. If you are wondering about the principle of Fair Use, there is a section at the end about this.
2. Is video game content protected by copyright law?
Video games are protected by copyright law and, in many cases, patent law and trademark law. For example, in a Batman game like Arkham Asylum, not only is the game itself copyrighted, but the character, name and logo of Batman have been trademarked (even the name Gotham City is trademarked), and many aspects of the game and/or visual design may have been patented.
Although your gameplay may be unique, your screen captures will likely contain a host of copyrighted, trademarked and/or patented elements. These include: the game itself, the game engine, the user interface, other visual elements, the script, dialogue recordings, music composition and recordings, characters, character designs and logos. Importantly, different companies and individuals may own the rights to different things. For example, an in-game song may only have been licensed by the game developer for use within the game, with the copyright still being held by the songwriters and performers.
In this article, I won’t spend time describing how many years the copyright lasts for in different jurisdictions or how games are classified in legal terms (e.g., as audio-visual works, computer software or literary works or as distributive in nature), so let’s just go with the simple statement that any game you are now playing is almost certainly protected under copyright law and will continue to be protected for several decades.
3. Isn’t it true that many game developers appreciate Let’s Play videos?
Absolutely. What better promotion is there than thousands of excited players sharing their experiences online? That kind of word-of-mouth promotion can’t be bought. For example, let’s look at Ubisoft’s stance:
At Ubisoft, we value the talented content creators on YouTube, and we want to empower all of you to produce Ubisoft-related videos…We consider ourselves fortunate to have so many passionate fans creating great content based on our brands, and we plan to work with as many of you as possible to help remove any incorrect claims. (Ubisoft, YouTube and Copyrights)
Many game developers are savvy enough to recognize that Let’s Play videos are a great form of promotion and therefore allow YouTubers to upload and monetize videos featuring extensive gameplay footage. Now, many of the 100 most popular channels on YouTube are Let’s Play channels.
Some developers give explicit permission in the terms of service for their games, with Mojang, the copyright owners of Minecraft, being a notable example. For Minecraft, you would just need to take care of a few easy-to-meet requirements regarding use of the Minecraft name and logo (these deal with trademark concerns) and you are free to use their videos AND monetize them on YouTube (Minecraft EULA)
Here is a useful list of game developers than support Let’s Play videos; the list also describes the conditions you would need to meet (e.g., no conditions, email them, include a copyright disclaimer, add commentary, etc) and indicates whether or not you can monetize the videos: Let’s Play Friendly Developers
Some developers may not explicitly allow Let’s Play Videos or may not respond to permission requests but still allow Let’s Play videos to stay online. In this case, you should be aware that developers may suddenly switch their approach and may suddenly start taking down Let’s Play videos that feature their games. It is always best to get some form of assurance in writing.
4. So if a game developer is OK with my Let’s Play video, everything is fine, right?
Unfortunately, not always. In some cases, some of the elements in the game such as trademarked characters and logos or copyrighted songs may have been licensed for use only in the game itself and in official promotions. In these cases, the trademarks and copyrights are not owned by the developers, so they would not be able to give you permission. Music may be especially troublesome. For example, if a song is playing on the radio a scene from Grand Theft Auto and you include that in your video, you can get a Content ID notification or DMCA takedown notice from the copyright owners of the song. To avoid this kind of problem, you should see if your game has a No Music option and use it for your Let’s Play videos.
Here’s another example: although Ubisoft is explicitly welcoming Let’s Play Videos, if you use their Just Dance game (which features a lot of hit songs) for making Let’s Play videos, you would have the right to upload the visuals (this permission is granted by Ubisoft) but not the music. This problem has been mentioned on Ubisoft and YouTube forums and people have contacted Ubisoft directly, but the developer has not responded to queries about the use of in-game music in Let’s Play videos. In the following Just Dance Let’s Play video, for example, the music copyright (and therefore the monetization rights) have been claimed by the owners of the rights to the song YMCA.
5. Why do some game developers order Let’s Play videos to be taken down?
Perhaps these developers believe that maintaining control over copyrighted and trademarked content is more important than the promotion generated by Let’s Play videos. If you are going to be making Let’s Play videos for a certain game, you should try to get permission from that game’s developers if the terms of service don’t already allow for such uses. At the very least, you should find out from other video uploaders if the games you want to focus on are ‘safe’ to us.
6. Can I monetize Let’s Play videos?
The answer depends on the developer. Some developers allow this explicitly, some have certain conditions and and some don’t allow you to do this. According to YouTube’s terms of service, to monetize videos you must create all the content yourself OR have the permission or rights to make commercial use of other kinds of content you use (you can refer to these documents from YouTube (What Kind of Content Can I Monetize? and Video Monetization Criteria). As mentioned earlier, Minecraft’s terms of service explicitly state that you can monetize Let’s Play videos with footage from the game. The previously mentioned list of Let’s Play Friendly Developers can given you more information about which developers are more likely to allow monetization.
There are three more important points about monetizing videos to bear in mind:
- Unless you have permission (written permission from the developer or in the game’s terms of service) to monetize your video, the game developer (or a music collection agency overseeing music licensing and royalties) can take over monetization of your video, getting all the revenue, at any time. In December 2013 many game channels were hit with a tidal wave of copyright notices (YouTube Video Game Shows Hit with Copyright Blitz ). YouTube recently created a revenue sharing option for videos of cover songs, but this is not available for Let’s Play videos.
- With monetization, you are not only following the terms of service of Google/YouTube, you are now following the terms of service of AdSense, which are in some ways stricter. For example, view-building practices that are OK according to YouTube’s terms of service, could get your videos taken down and your account banned under the terms of service of AdSense (Is It OK to Buy View for YouTube Videos).
- If you frequently get your monetization requests denied, you may eventually lose the right to monetize videos.
6. Should I join an MCN?
Multi-channel networks can help with things like getting clearance to use clips and monetizing your video. If you are looking at creating a gaming channel as an important source of income, it might be a good idea to join a multi-channel network. Do read this article by Freddie Wong (aka FreddieW) about the how channels operate and how to negotiate a contract that suits you: YouTube Networks: 7 Things You need to Know
Know your rights, but accept the limits to those rights.
Respect the rights of copyright owners.
Know the terms of service of YouTube, AdSense and the developers of the games you want to feature.
Appendix 1. What about fair use? Does it apply to Let’s Play videos?
Fair use is a provision in copyright law that allows people to make use of copyrighted work for the purposes for education, criticism or commentary. ‘Commentary’ here means analysis, not the sort of play-be-play commentary associated with sports broadcasting or many gameplay videos (which is why you won’t often come across homemade DVD-commentary-style videos of Hollywood movies or YouTube channels dedicated to combining original play-by-play commentary with official video clips from the English Premier League). The purpose of the provision is basically to prevent copyright restrictions from deterring the development of new ideas and the advancement of knowledge.
The use of a limited amount of gameplay footage in a game review could be considered to fall within fair use provisions because 1) you are using a small portion of the game and 2) you have modified the purpose, taking something that was entertainment and creating something that is an informational and critical. Your use of the footage can therefore considered to be transformational.
The extended use of game footage in a Let’s Play video, however, would likely not be considered fair use. Many gamers and let’s players would argue that it is fair use, but their views are not exactly unbiased.
There are four criteria used when evaluating whether or not something can be considered fair use:
- The nature of the original work. The use of fact-based works is more likely to be considered fair use than the use of creative works.
- The amount of the original work, especially when compared to what you are bringing to the table. If the original work is only a small part of what you are doing (e.g., a 30-second film clip in a 5-minute review), there is a greater chance that the use would be considered fair use. Unfortunately, there are no set guidelines regarding how much of a work can be used. You would also need to look the how important the part you are using is.
- The ability of your work to interfere with the market value of a work and the size of the potential audience. If you aren’t affecting the potential revenue or a work and only showing your new work to a limited number of people, there is a greater chance that the use would be considered fair use.
- The purpose of the the new work and the the extent to which the new work transforms the existing work. If the new work is educational or critical in nature and if it is non-commercial, there is a greater chance that the use would fall within fair use. Similarly if you are able to transform the purpose of the original work, there is a greater chance the use would be considered fair use.
Do Let’s Play Videos meet these criteria?
1. The nature of the original work.
The original work is creative in nature (unless you are playing an educational game).
2. The amount of the original work
A ten-minute game review showing brief ten-second clips would be far more likely to be considered fair use than a ten minute Let’s Play video where you are just adding running commentary. If you are creating a Let’s Play series where you are going through the whole game, then you definitely won’t be meeting this criteria.
3. The ability of the new work to affect the market potential of the existing work
You can argue that Let’s Play videos wouldn’t really interfere with a game’s market potential unless the game developer is also selling game guides. The opposing point of view is that Let’s Play videos may dispel too much of the mystery of the game and may give away important plot points, thus ruining the experience for others. Here’s a film equivalent; a film review site may show clips from The Sixth Sense or Toy Story 3, but if the clip reveals the vital plot twist of the former or the entire climatic incinerator scene in the latter, that would weaken any fair use claim. Another problem with posting Let’s Play videos on YouTube is the enormous size of the potential audience.
4. The purpose of the new work
If your videos are monetized, that moves them into the commercial realm. A Let’s Play video, created primarily to entertain, doesn’t really transform the purpose of the game, which was also created primarily to entertain. With a game review, however, the use of original footage could be considered to be transformational because the purpose of the original work is entertainment while the purpose of the new work is criticism.
Only the most liberal interpretation of the criteria could see the extensive use of gameplay screen captures in Let’s Play videos as being fair use. Fair use provisions are intended to allow copyright materials to be used for the purposes of education and advancement of knowledge through critical analysis. Do Let’s Play videos really reflect this purpose?
There are four more points about fair use to bear in mind:
- Whether something is fair use or not can only be determined by a court of law (for example, it can act as legal defense in the event that you get sued for copyright infringement).
- It cannot be applied for beforehand.
- It applies to copyright law, but not to patent or trademark law.
- If you challenge a Content ID match on one of your YouTube videos using fair use as your reason for appeal, your challenge is passed onto the copyright owner (Disputing Content ID matches), who may not agree with your interpretation.
You can also appeal DMCA Takedowns (where you video is removed), but you would need to send your personal information to the copyright owner and you are inviting them to take legal action (YouTube’s Counter-notification Process). The copyright owners would then have 10-14 business days in which to take legal action against you (Guide to YouTube removals). If they do not, then your video is restored. As you are now entering murky legal waters, at this stage it would be a good idea to consult a lawyer before doing anything.
Appendix 2. What can happen if I don’t have permission ?
The consequences of using copyrighted material on YouTube without permission are varied. If two YouTubers upload exactly the same type of video for exactly the same type of game, there is no guarantee that the same things will happen. Any of the following may happen:
- There are no problems and your video can be monetized.
- Your video cannot be monetized because you are unable to prove you have the necessary permission.
- An element of the game is correctly identified through a Content ID match, and the copyright owner allows the video to stay up (but you are unlikely to be able to monetize it, unless you can prove you have the right to use the content commercially). In this case, be aware that developers may later change their stance.
- An element of the game is correctly identified through a Content ID match, and the copyright owner decides to take over monetization.
- An element of the game is correctly identified through a Content ID match, and the copyright owner decides to have your video taken down and you get a copyright strike. These usually disappear after six months if there are no further issues with your channel’s content. However, once you get three copyright strikes, your account is terminated.
- A gameplay element is incorrectly identified through a Content ID match. This could be a mistake or it could be the result of a copyright troll abusing that the Content ID Match system. Usually, these clams will be released if challenged. One problem, however is that because Let’s Play uploaders may not have the right to use the content, they may be reluctant to challenge a claim by an unknown organization, which may or may not have the right to make such a claim.
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