Hopefully, this article can help you make sense of the copyright issues related to the uploading of gameplay 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.
Creative Commons is a free licensing system designed to make it easier for creative people to share their work and make it freely available for people to use (creativecommons.org/).
This article examines the benefits, perils and pitfalls of using Creative Commons Licences. If you are doing creative work and want to share your work, you can consider if the Creative Commons license is right for you. There is no need for a formal registration process; you can simply indicate somewhere on or by a specific work that you are publishing it under one of the six licenses:
Attribution (CC BY) (The user needs to credit the creator)
Attribution Share Alike (CC BY-SA) (The user needs to credit the creator and the the new work, whatever it is, should have the same Creative Commons license.
Attribution No Derivatives (CC BY-ND) (The user needs to credit the creator; the user may use, but may not adapt or remix the original work).
Attribution Non-Commercial (CC BY-NC)(The user needs to credit the creator; the work may only be used for free for non-commercial purposes; however, the creator, is free to make other arrangements for people who want to use the work commercially)
Attribution Non-Commercial No Derivatives (CC BY-NC-ND)
Why should content creators use Creative Commons Licenses them?
Artists, musicians, photographers, bloggers and video-makers can consider consider using Creative Commons licenses to make their work available to a wider audience. It can also help others—like students, charities, amateur filmmakers or simply fellow hobbyists—create their own work.
Creative Commons licences are becoming more popular. Many media sites sharing like YouTube, Vimeo, Wikimedia Commons and Flickr include functions that allows users to post Creative Commons content (with Vimeo, the default sharing setting is a Creative Commons license). This Creative Commons licensing feature is typically found under Advanced Settings or Sharing Options.
These media sharing sites, as well as search engines like Google (in Google’s case, this function is found under Advanced Search), also enable people to search specifically for Creative Commons content, so if you upload your content using such a license, it may bring your work more exposure through such searches. However, Not a lot of people know about these search filters yet, so you are unlikely to see a huge increase in views/traffic.
What are the drawbacks of Creative Commons licences?
Although Creative Commons licenses are very useful they can be misused, so content creators and content users need to be careful.
1. If you are a content user, can you guarantee that the content creator had the rights to publish that content under a Creative Commons license?
This may be the fatal flaw of the Creative Commons system; in order for it to work properly, everyone needs to be familiar with concepts like copyright law and public domain. For example, Person A may publish under a Creative Commons license a recording of her saxophone quartet’s version of Beethoven’s Moonlight Sonata. Person A may think that this composition is in the public domain, but the quartet was using an arrangement that is protected by copyright as it is a substantial adaptation of the original Beethoven work. Therefore, Person A did not actually have the right to issue the work under a Creative Commons license. Person B then comes across the song and uses it in a video that he uploads to YouTube, and he publishes that video under a Creative Commons license. Then twenty other people make use of that video to create their own videos. The problem is that Person B and the twenty other people are now guilty of copyright infringement and could have their videos taken down. This kind of inadvertent copyright infringement is popping up quite frequently on YouTube’s help discussion forum.
2. They last forever…kind of
For the creator: Once you license your work, or state that you are issuing your work under a Creative Commons license, the license is irrevocable. One day down the line, you might want to make your work ‘less free’. For example, perhaps your photography hobby has now turned into a profession. You would not be able to cancel the Creative Commons licenses you applied to all of your old work.
For the user: Not all creators follow the above rule and people often change or cancel the licenses. For example, on Flickr, a photographer can upload photos with a Creative Commons license and then some time later change the copyright on the photos to ‘All Rights Reserved’. If you really want to be safe, when you download anything listed under Creative Commons and plan to use it in your own work, it would be a good idea to get a screen capture of the webpage and write down the date downloaded, the site URL and the type of license the work was published under. Here’s a case in which YouTuber meloST used the YouTube video editor to create his own videos from CC-licensed YouTube videos. Sometime later, the uploader of one of the videos removed the CC licensing and then had two of meloST’s videos taken down, earning him two copyright strikes and putting his channel in jeopardy: productforums.google.com/forum/#!msg/youtube/HEMd4WQcTlk/Z4xEqVXDHvgJ
3. Are you sure that you are OK with all possible uses of your work?
Let’s say, for example, you have strong views on a social issue like gay marriage. Would you mind if someone used your photo of two men as an illustration in a popular blog article espousing completely the opposite view and then having your name attached to it. Under the Creative Commons system, you can demand to have your name removed, but would you mind having your work used to support something you are strongly opposed to? The international Creative Commons licenses do include a moral rights clause stating that end users “must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation.” However, it is difficult to see how this clause could be used by you, the photographer, in the given example, which simply involves opposing points of view. After all, what is considered immoral or reputation-damaging by one person, may not be considered so bad by the community in general. The blog writer may even consider his/her use of your photo to be doing you a favor in terms of your honor and reputation.
4. Is everyone involved in your work OK with all the possible uses? And what about the two men in the photo? Perhaps it is just a photo of two of your friends taken during a trip to the beach. Suddenly, because of the blog’s popularity, the photo starts appearing in Facebook feeds and before long, your two straight friends have become poster boys for homosexuality. Notwithstanding their own views on gay rights, would they be comfortable with their new role as symbols. A similar thing happened to a Texan teen, whose images, published by a friend on Flickr with a CC BY license, were used in a Virgin Mobile advertising campaign in Australia that presented her in an unflattering light (www.cbsnews.com/2100-205_162-3290986.html). Her family attempted to sue various parties, but was unsuccessful (the main stumbling block was that there was no clear jurisdiction).
5. Creative Commons licenses can easily be abused by scrapers
Scrapers are people who collect, often using automated software, content produced by others and then republish the content with the goal being to drive people to their own website and earn advertising dollars (this is called ‘web scraping’). If all of your photos, videos or blog entries are published under Creative Commons licenses, there is nothing to stop a scraper from downloading and re-uploading ALL your work into what essentially becomes a mirror site. If you find out your Creative Commons licensed work is scraped, there is not much you can do about it, especially if your name is included somewhere on the page. If your work is NOT published under a Creative Commons license, however, you can act to have the copied content removed
6. The licences may be too specific, not specific enough or may clash
Here are some examples:
Can images with a Non-Derivative license be used unaltered to make a video?
What exactly does non-commercial mean? Are monetized YouTube videos commercial? What about a company-produced video that features one of its products but doesn’t actually try to sell the product? Is that still commercial use?
If you create a video that uses an Attribution (BY) Share Alike (SA) image that you found along with music that you received permission to use, should you slap a Share Alike license on your own video? If you don’t, the use of the image infringes the rights of the photographer. If you do, you are infringing on the copyright held by the composer/musician.
Can you upload a video you made that contains music issued under an CC-NC license to YouTube and publish it under YouTube’s Creative Common’s system (CC-BY)?
If I take a photo of graffiti, can I then publish it under a licence allowing for commercial purposes?
I can answer all of the above questions based on my understanding of the related laws: 1) No, they can’t. 2. There are grey areas; Yes, it is; Yes, it is. 3) You would need to get permission from the musician to do that. 4) No. 5) Most likely no, but it would depend on the extent to which the photo includes things other than the graffiti (the person or organisation that owns the wall the graffiti was painted on owns the copyright to the actual graffiti unless other arrangements were made with the artist).
However, different people might give you completely different answers.
Content creators need to look carefully at the pitfalls of Creative Commons licenses before deciding whether they are willing to share their work permanently under those terms. Content users need to especially careful when using Creative Commons work. They should only use work from creators they have full confidence in and should keep a clear record of the licenses (e.g, they should take screen shots) .
My own use of Creative Commons
I rarely use Creative Commons works in my own work. One exception might be to use attributed CC photos in something like class notes.
I currently use it for some photos (CC-BY-NC), but never for photos with people in them. These I publish using the ‘All Rights Reserved’ setting.
I don’t use CC licenses with blog posts. Why give someone the right to republish your work in it’s entirety when it is just as effective for the other person to quote a paragraph and then have a “read the original article link” at the end of the paragraph?
Is it OK to download MP3s, software and movies without paying.
Arguments for and against
Let’s treat this as a debate and look at the arguments for and against illegal downloading using music recordings as the main example.
1. It’s Just a Copy
For: It is not stealing. It is just creating a copy of a product. That product still exists and still can be sold; therefore, downloading a copy of a computer file is not the same as stealing a physical product like a CD.
Against: Copyright laws are put into place to try to ensure that people in creative industries (filmmakers, musicians, music engineers, writers, composers, software developers etc.) are able to get paid for the things they create (their intellectual property). If artists work hard to compose and record songs, shouldn’t they be able to gain financial rewards like professionals in any other field? Not paying for something which is supposed to be paid for, no matter whether it is a physical object or not, is still wrong. Winner: Against Score: 0 – 1
2. I Support the Artists I Like in My Own Way
For: Think of it like a test drive. I’ll try out the songs and if I like them enough maybe I’ll spend some money and buy the album or maybe I will go to that band’s concert and buy some merchandise. Bands should focus on making money from concerts and merchandise rather than from selling music.
Against: There are a lot of ifs and maybes in the above argument. For all the songs you have downloaded and liked, have you always ended up buying something (tickets, a CD, merchandise) from that artist? Also, you can usually preview parts of songs on Amazon or entire songs YouTube. Does one really need to hear every part of every song on the whole album before you decide to buy it?
Winner: Against. For the many individuals who really carry out on their promise to support the artists they like, the winner might be ‘for’, but when you consider all the people who download things they like, but don’t end up buying much of anything, the decision would have to go the other way. In this BBC video interview, musician David Lowery video points out some of the hypocrisy of online music sharing: www.bbc.co.uk/news/magazine-25771368. He mentions how people are willing to pay corporations for hardware and broadband access that facilitate online sharing, yet are unwilling to pay for the creative talent actually producing the songs. Score: 0 – 2
3. I Wouldn’t Buy It Anyway
For: It’s not like anyone is losing money. If I didn’t get it for free, I wouldn’t buy it anyway.
Against: Are you kidding? According to the RIAA, the recording industry alone loses over $12 billion per year due to music piracy.
Winner: Draw. Both sides are using misleading evidence. On the one hand, most people—if music, software and movies could not be freely downloaded—would likely end up buying some of these things. On the other hand, it is also wrong to count every song pirated as money lost. People who are now downloading things for free would be more discerning if they had to buy things, and a lot of what is downloaded certainly wouldn’t be bought. Score: 0.5 – 2.5
4. The Robin Hood Approach Part 1
For: Pop stars are rich. Do I really want to be subsidizing their luxurious lifestyles? They don’t need any more money. Song uploaders and downloaders are modern-day Robin Hoods
Against: Is it really OK to steal from the rich? Let’s just leave that argument aside for now. Are you trying to say that people are downloading only the songs of wealthy, pampered pop stars? Most performers and songwriters are just normal people struggling to make ends meet. It’s difficult for non-mainstream artists to gain a foothold in the industry, and without getting paid for their music, it will be next to impossible for anyone to break out of the amateur/hobbyist stage.
Winner: Against Score: 0.5 – 3.5
5. The Robin Hood Approach Part 2
For: Record companies are rich. Besides, they take almost all the performers’ money from CD sales; artists can make more money from concerts and merchandise. That way, they get the money, not those immoral, greedy corporations. The musicians should cut out the middle man and just sell their music to us directly.
Against: Artists do get royalties from CD and online music sales, though terms vary greatly (entertainment.howstuffworks.com/music-royalties6.htm), and it is true that many artists will receive nothing (because they need to pay back advances given to them by the company that are used to produce the record). Record companies, however, need to invest a lot of money in each new act and in the large majority of cases, these acts end up losing the company money. Besides, you say you are supporting the artist, but by not buying their work, you are still denying them income and are making it less likely they can get a new contract and be able to release new music and go on tours.
Winner: Draw. The recording industry can (and should) improve the way artists are treated and remunerated, but downloading music without buying it still harms the artist. Say for example, an artist needs to pay back a record company’s advances—the less money being made from music sales, the longer it will take before the performer receives any royalties. I don’t think we are at the stage yet where a lot of acts can jettison support from record labels. Score: 1 – 4
6. Let Them Eat Cake
For: Many artists simply want to be heard and praised. Anyone who is in the music business for the money is not a true artist. Free downloading means more people can hear their music, right? Isn’t that what they want?
Against: Praise can’t buy food. While some artists do release free music (as a kind of promotion or because they treat music as a hobby and don’t need the income), professionals can’t be expected to give their work away for free.
Winner: Against Score: 1 – 5
7. It’s Too Expensive
For: Music CDs, Software, and Movie DVDs are simply too expensive. For example, digital recording techniques have reduced the amount of money needed to record a CD. Production, packaging and delivery costs are reduced (especially when compared to the cost or making vinyl albums). In addition, most albums aren’t worth it. If I buy an album, there might only be one or two decent songs on it. The value for money simply isn’t there.
Against: There are lots of costs involved. Sure record companies make a lot of money from CD sales of very popular artists, but this money is used to invest in new artists and less commercially successful artists. Anyways, just because something is expensive, that doesn’t give you the right to get it for free. And maybe if you stopped downloading it for free, reocrd companies would reduce prices.
Winner: For. Originally, I called this a draw, but I think I’ll have to go with the ‘Fors’ on this one. Even some music industry insiders agree that music CDs and downloads are over-priced (www.bbc.co.uk/news/entertainment-arts-11547279) Score: 2 – 5
8. Everyone Is Doing It
For: Everyone I know has illegal downloads. Maybe it is ‘illegal’, but it can’t be wrong if so many people are doing it and they have been doing it for years.
Against: That doesn’t make it right. Throughout history, there are many examples of ‘everyone’ doing the wrong thing (slavery in the confederate states, apartheid in South Africa, Nazism in Germany). If a kind of behavior is a social norm, it is much easier for people to justify doing it, but it may still not be the right thing to do.
Winner: Draw. The ‘for’ argument doesn’t really stand up (it is a kind of logical fallacy known as ‘argumentum ad populum‘), but creative industries have been slow off the mark to recognize and tackle this problem, so they get a lot of the blame. How could the industries have responded? For starters, they could have reviewed their pricing and marketing strategies, made it cheap and easy to download things and dealt with international online sales and licensing arrangements years ago, like when Napster was released in 1999. To see how one company in the industry, HMV, failed to heed the warning signs, you can read this article by Philip Beeching: Why companies fail – the rise and fall of HMV Score: 2.5 – 5.5
9. I Can’t Buy It; I Can Download It
For: Some things are not available to be bought (especially if you live outside of the US) or are very difficult to buy, but they can be easily downloaded for free.
Against: It’s difficult, but you should still do the right thing and buy it.
Winner: For. If something is easier to get for free than it is to buy, that’s a very strong disincentive to purchasing. This is especially true in many countries outside the US—there are no equivalents to sites like Netflix, and the iTunes store just became available to selected countries outside the US earlier this year. A similar problem exists with the regional coding system for DVDs. If, for example, the only way I can purchase a DVD is to buy one that is from another region, the DVD will not work in my region-specific hard drive or DVD player. I can, however, download a region-free version of the movie for free. What should I do? The answer is obvious.
(Edit: since this article was written, it as become a lot easier to buy songs online around the world. However, the music industry was really slow in making this happen. While they dithered, many people got in the habit of downloading things for free.) Score: 3.5 – 5.5
10. It Frees up Money for Other Things
For: If I had to buy all my music, software, movies and TV shows, I wouldn’t have money left over for other things like good coffee. Overall, I’m not hurting the economy.
Against: So creative artists lose out while Starbucks gains? That’s not a very convincing argument. Would you mind if we took some of your salary and redistributed it to the owner of our favorite pub?
Winner: Against. The point is that while the economy overall is not being harmed, the sector responsible for creating music loses out while unrelated retailers gain. Score: 3.5 – 6.5
11. It’s for the Sake of the Artist
For: If artists had nothing to do but write music they would have very few interesting life experiences to inspire them. If we don’t pay them, they will need to find different jobs and meet different kinds of people. Therefore, their art will be more interesting and meaningful, right?
Against: Seriously? You’re really reaching here.
Winner: Let’s just throw this argument out. I have read it on online forums, so it does exist, but it seems too delusional to be considered as an actual argument. Score: 3.5 – 6.5
12. I Bought it Another Format Already
For: I bought this album on vinyl, I bought it on cassette, I bought the CD (but left it in the sun too long) and now you want me to pay a fourth time for a digital version?
Against: It’s a new format, an upgrade!
Winner: For. Maybe for this kind of case, there should be the same kind of upgrade pricing that is available with some software programs. If we are arguing that people should be paying for the content (i.e., the song) of a digital download—and not a physical product (see Point 1)—people who have already paid for that content should be given some consideration. Score: 4.5 – 6.5
And the winner is:
Against 4.5 – 6.5 (points decision).
Some of the ‘for’ arguments seem to downgrade the role of the artist. The artists are not being considered as professionals trying to earn a living, but as either celebrities who have too much already or as hobbyists who should be grateful we care about them enough to listen to them.
The remaining arguments tend to focus on fairness (Are prices fair? Do artists receive their fair share of sales revenue?) and the practical issue of availability. There are, therefore, a few things creative industries, like the record industry, can do to improve the situation:
Make songs easy to purchase online, even if you live outside the US (edit, this has improved a lot since the article was first written)
Review the pricing system (If prices are low enough and if people can preview and buy just the track they want, will they be more willing to spend their money?)
Make sure the actual creative people are treated and paid properly and that the general public is aware of it (so that when people purchase music online or on CDs, they feel that they are mainly supporting the artist, not the company).
Don’t unnecessarily restrict uses of bought products (e.g., A DVD should be playable in any computer/DVD player).
Bonus round for online video services
The above arguments also apply to services like NetFlix, HBO, Amazon Prime and Disney+. If you want to watch all of the top shows, you will need to pay for all of the services, which seems excessive. I would award a point to the ‘pirating is OK’ camp, for this argument.
So now we are at 5.5 to 6.5. That means the debate is becoming a lot ‘greyer’ than I had originally anticipated.
So why do people still think it is OK?
Arguments 7 and 9 are just two arguments, but they are strong ones. If the product isn’t easily available, is considered too expensive by the target consumers and/or comes with cumbersome restrictions, can you blame them if they then decide to get the same product for free?
In addition, Argument 8, the “Everyone is Doing It” argument, is very attractive. Though it would not stand up in any kind of debate, it does make it easy for people to justify their actions. After all, if everyone is doing something, how bad can it be?
Have I missed any common arguments?
What are you views? Do you agree with the ‘results’? Leave a comment below.
If people continue to download illegally and corporations do nothing constructive to entice people to buy music, different things might happen:
Best Case Scenario: The entire way the music industry works changes. Performers find efficient ways to reach their target audiences directly and make enough money through music sales, concerts, publishing rights, music streaming, video streaming, promotion and merchandising. Basically, the big labels lose their power while the artists gain independence (unless services like Spotify and iTunes become more dominant and take over the power and the cash that the major labels used to enjoy). Freed of the excessive demands to be commercial, artists usher in a renaissance age of musical creativity.
Worst Case Scenario: It will become more and more difficult for people to have a career in the music industry. Great new bands will still arrive on the scene, but they won’t be able to support themselves with the income they earn through their music, and within a few years, they will flame out, sputter away or just settle on grinding out a career on their regional bar scene. If you look at US census statistics, the number of people who identify themselves as musicians has dropped considerably (Have we lost 41 percent of our musicians? Depends on how you (the RIAA) count). This definitely doesn’t indicate a renaissance in the music industry.
Where do you think we are heading?
A lot of the arguments in favor of illegal downloading seem to be rationalizations that allow people to benefit (get lots of free stuff) while at the same time feeling good about themselves. Here is an interesting video on this topic.
What about myself? As a music creator, I would consider myself as a hobbyist; my music is free to download and is free to use on non-commercial projects. However, I do not rule out selling/licensing the music in future.
As a consumer, I am old-fashioned. I like to buy things in stores; I like having a physical product in my hand when I buy something. Have I ever downloaded something without paying? Occasionally, if I cannot buy something in a store, I will download it.
The aim of this article is to help you better understand the copyright principles, such as fair use, public domain and creative commons licensing, that you need to be aware of when including music in your YouTube videos. At the end of the page, there are also a few links regarding where to find music that you can legally use as background music in your video.