No, I believe most of these "Lets Play" videos contain commentary voice-overs by the players, but neither they nor Google care about this with the Content ID system.
I'm not a copyright lawyer, but that sounds like an unauthorized derivative work. For fair use to apply, the work has to be transformative, changing the original work in a substantial way. Since I'm not a lawyer I don't know if recording your own voice over the video would be considered significantly transformative or not.
IANAL either, but I'd say it's pretty transformative. It goes from binary code and assets you can interact with to a video with commentary.
Song mashups already go from songs to similar-sounding songs and those are fine. Again, IANAL, but if mashups are okay, it makes sense to me that Let's Play videos should fall under the same - if not more generous - rules.
But legally mashups aren't okay. Bridgeport Music, Inc. v. Dimension Films was a sucessful suit over a two-second sample. The court decided that unlicensed use of even this brief riff was infringement. Mashups are tolerated because of their place in musical culture, but if a copyright owner decided to sue they'd have an easy case. (Though maybe not from a PR perspective.) (I'm also not a lawyer.)
The original work is an interactive piece of software.
The videos in question are people showing what can be done with something which is copyrighted. They videos don't provide any ability to play the game. The games are only being played by a single person. There is no copy of the game being made.
A running commentary of a single played instance of a game is entirely different than sitting down with a controller in your hand and playing the game. That seems significantly transformative to me.
The audio/visual aspect is kept. Interactive gameplay is simulated. The person watching gets to see the story unfold. It's clearly a derivative work, the question is where does the line stand and does making a LP cross it?
And that's a huge problem with copyright law, it's so grey in so many areas. If the exact situation hasn't been defended in court, it's unclear whether or nothing something is legal.
The story playing out is one thing that makes it a tough call where the line could be drawn.
What if it isn't a RPG? What if we're talking about a video of mario kart?
If I bought a physical Nintendo chess set, I don't think anyone would claim a video of my gameplay would be Nintendo's property. By extension, a video of me playing a virtual nintendo chess game with my commentary should still be mine, after all, the story is being written by the players. I think that's fairly analogous to a commentary of a mario kart game.
Now it gets interesting with a role playing game like zelda perhaps. I certainly have a right to produce a gameplay from it. Do I have a right to record it? Why not? How is it really any different that recording a play with a physical object, something which is done every day. Nintendo may have the storyline, but they didn't create the actual play. That is a result of an authorized use of the game. Player runs over here, picks up a sword -- that's something the player did, not Nintendo.
I think in the end it boils down to what the lawyers can convince a judge is true, rather than what can be proven or what is the law.
How can Nintendo claim ownership of the videos? I can see how they might claim ownership of the images and in-game sounds, but the commentary and actions made by the player is the ownership of the player.
Taking control of content which they only have partial legal right to is still very much illegal and copyright infringement. They are basically knowingly committing commercial piracy, including sending knowingly false take down notices (if they claim complete ownership). In times like that, the authors of said videos has a good chance to sue for damages.
"Claim ownership of" is within the context of YouTube's ecosystem and YouTube's TOS. As a YouTube partner, they have the right to monetize videos that YouTube agrees they "own," block them, &c.
I don't think that asserting ownership within YouTube is equivalent to asserting legal ownership of all of the IP involved. For example, I can't see them rebroadcasting any of these videos in another medium.
Yeah, the video is still on the account and under control of the original uploader. The only thing that's changed is they can't control is that the ads on their videos now fund Nintendo instead of themselves.
Some people view Let's Plays before buying a game. People aren't going to go to the trouble of recording Let's Plays without getting any kind of ad revenue from it. So people aren't going to bother recording Nintendo games anymore.
And they can just delete all the Nintendo videos they already have up. So now Nintendo doesn't have anyone promoting their games (for free to Nintendo) and isn't getting any of the very small amounts of ad revenue and is competing against a bunch of other games that do have Let's Plays up online.
This was such a solid analysis through-and-through. I feel that so many companies are getting real antsy and feel the need to grab for complete 100% ownership over all creative rights for everything with no leeway whatsoever. We, the people who actually pay for & consume these games, have no right to redesign or modify or record or promote anything without their consent - which would probably be denied most of the time anyways. From my point of view, it's just very difficult to continue supporting the video game industry anymore.
>From my point of view, it's just very difficult to continue supporting the video game industry anymore.
Don't judge an industry by it's rotting old guard. Nintendo has been making blunder after blunder for quite some time and does not represent gaming as a whole.
Reddit has helped built a list[1] of studios and publishers who have given permissions for LPers to make videos, and the list is pretty comprehensive. Tons of developers and companies are 100% okay with and even promote it.
Also, with both next gen consoles supporting game play video natively, it's going to get bigger and bigger in the industry.
Definitely not nice, but stupid? I'm not sure about that. I have some doubts that Nintendo (being usually very good at not making their community angry IIRC) would do this without reason. Can we rule out that they actually noticed declining sales of some titles as Let's Play videos about them popped up?
I can't imagine they wanted a PA article on this though.
>Can we rule out that they actually noticed declining sales of some titles as Let's Play videos about them popped up?
Let's run with that reasoning for a minute. That means that they did a study and found not only that the Let's Plays were costing them sales, but also that the lost revenue was small enough that it would be more profitable to keep the videos up and intercept the ad revenue, than to have them taken down entirely.
What that means is that the effect size they observed must have been tiny. As a consequence, to have observed a statistically significant correlation, they would have needed an extremely large sample size. Keep in mind that these are some very noisy variables they are supposed to have measured.
So in conclusion, yes I think we can rule that possibility out. Or at least, if they did notice declining sales, they were irrational for thinking that was sufficient evidence to take this action.
My point was that the rational version of what fhd2 suggested is very unlikely, leaving only irrational possibilities. If Nintendo is doing this on an executive's whim, then that's pretty stupid, which was my point.
> Let's run with that reasoning for a minute. That means that they did a study and found not only that the Let's Plays were costing them sales, but also that the lost revenue was small enough that it would be more profitable to keep the videos up and intercept the ad revenue, than to have them taken down entirely.
Maybe someone thought it'll make folks take their LPs down themselves without making much of a fuzz? But I admit it's not a very likely scenario.
People recorded Let's Plays as a hobby for years before a few worked out that it might be a business. This isn't going to stop anyone but the few who thought it would be a good idea to make their living playing video games for the Internet.
Who also happen to be the people putting the most time and effort into producing entertaining, watchable Let's Plays, and generally are the people who have the biggest audience.
I've seen the chilling effects of this sort of thing before, in the Machinima world, and you'd be amazed how much damage removing or limiting the top creators in the chain can do.
It's analogous to Girl Talk having to clear samples of other artists' work to produce his records.
Yeah, there are artists who don't clear samples, but those records are released as white label (for fear of legal action), or, they remix the samples such they they are unrecognizable (by mechanical means).
This is just the sampling argument all over again. I don't see why it should be different. The real question here is how good is the content ID algorithm? Is it going to get triggered on seconds of unedited video footage? Audio? What if you are talking over it or overlay text on it?
If you can create something new & unique to beat the algo, that's awesome. If you are simply using Nintendo's IP in metadata or wholesale showing off the game unedited, to draw people to your videos, your content should get questioned (ala Vanilla Ice using Bowie's riff in Ice Ice Baby).
Take, for example, Gamecenter CX vs a long play where someone just records himself playing a game and barely adds any commentary over it.
Really? I've always held that the common thought was that Nintendo games are very stylistic and artfully designed. I hear people talk for days about how beautiful the new Zelda game is or how artistically styled the new Mario game is. They might not pump out the most pixels, but they can designed around their limitations.
> Some people view Let's Plays before buying a game
I can't tell you how many times my son has come to me and asked for a new game because of some YouTube videos that he has been watching
Edit: as a matter of fact, he wanted to play the WiiU not too long ago after watching NintendoLand playthroughs of the Zelda game. The WiiU that hasn't been turned on in MONTHS
Presumably Youtube asked the same question to Nintendo that Youtube did to Mojang, do you want to monetize your trademarks? Mojang declined earning off Minecraft's massive youtube impact[1], Nintendo wanted the cash.
And so we can clearly see Nintendo has lost its way and Minecraft is the the new Nintendo.
Why would youtube do that though? They get their cut whether it goes to nintendo or the channel owner, and in fact it makes a lot more sense for them to keep the money going to the channel to incentivise them to make more videos
youtube videos are not monetized unless you turn advertising on. So presumably with mojang permission youtube would have been able to turn on alot more adverts.
Christ, how deep in trouble is Nintendo if they are going after youtubers' - i.e. their marketing partners - money? I mean, what kind of revenue are we talking here, a couple of millions?
I don't even know that it's that long-term of a mistake. We can expect professional quality Let's Plays for Nintendo games to die off almost instantly (since it's no longer a profession if Nintendo takes all the revenue), and for the people who do them to switch to non-Nintendo games.
In other words, they aren't even going to make very much money off of this in the short term, and they're driving the free advertising to their competition.
I don't think YouTube ad revenues are going to keep Nintendo from circling the drain. Seems like classic corporate overreach and shooting themselves in the foot.
A good analogy is buying a car. If I buy a car and make a video at the beach that happens to include the car, what right does the car manufacturer have to say, "The video incorporates my IP, so therefore we're going to force you to show ads for our car"?
You could argue that videogames are somehow different. But they're not. If someone makes a video about having fun with their friends, then the game they're doing it in is almost incidental. For example: http://www.youtube.com/watch?v=uD5J5LEBVCk
Videos such as that one take a lot of work to make. It takes many hours to record the content, many hours to edit it, and a way to promote it once it's made. The game maker probably doesn't deserve any slice of revenue generated from that. The game is incidental.
I wouldn't really call that a great analogy, a better analogy would be if you record a video of you showing the insides of the car and going on a trip where you describe how the car drives. But still, dumb dumb move by Nintendo
All these articles are assuming Nintendo will get the whole profits from the videos, but I'm not seeing that in any sources. Does any one have more info on that? As far as I understand it, Nintendo will only get a cut from the profits, YouTube another cut, and the rest will go to the creator of the video. Not that it makes the move much better, but I think it's important to note if people can still make money from Nintendo Let's Plays.
The other thing I would like to know if anyone has more info, is if this in fact, affects Let's Plays. Maybe they were only going after machinima, or videos that show trailers or cutscenes. Is there any source where I can read more of that? I think this could be the crux of the issue: if they aren't trying to get money from Let's Plays, the move isn't so bad. EDIT: NVM, read the original source and they are claiming LP videos... that's sad, really.
What I find weird about this whole thing is that neither Nintendo or YouTube have issued an explanation of how things are going to work, and why they think the move is a good one. With all the backslash that this has created in the last week, I would think those companies would like to offer their side of the argument.
Quick question for the legally-knowledgeable here (I am not an LPer and won't act on the knowledge, just want to know if what I know about the law is right).
As far as I know when you use any recorded human product (voice, movement, etc.) you need a signed "release form" from the people involved in that - else you stand to be sued for damages (due to rights violation, nothing to do with copyright, although I guess the LPers could have a case there as well). Music artists, for example, need to sign one of these release forms to give their publisher the rights to their voice.
Considering that the LPs are 50/50 Nintendo/LPer couldn't the LPer's [in theory] lash back and demand royalties because Nintendo illegally become their publisher without acquiring release forms (the YouTube EULA is between the LPer and YT, not the LPer and Nintendo)? Or indeed demand damages that far exceed any form of profit they have lost from the adverts in the first place (rights violation)? Or am I completely wrong?
54 comments
[ 3.2 ms ] story [ 132 ms ] threadOn the other side, no one will let you share their content.
If the world were a person, he would be right on track for schizophrenia.
Song mashups already go from songs to similar-sounding songs and those are fine. Again, IANAL, but if mashups are okay, it makes sense to me that Let's Play videos should fall under the same - if not more generous - rules.
The videos in question are people showing what can be done with something which is copyrighted. They videos don't provide any ability to play the game. The games are only being played by a single person. There is no copy of the game being made.
A running commentary of a single played instance of a game is entirely different than sitting down with a controller in your hand and playing the game. That seems significantly transformative to me.
And that's a huge problem with copyright law, it's so grey in so many areas. If the exact situation hasn't been defended in court, it's unclear whether or nothing something is legal.
What if it isn't a RPG? What if we're talking about a video of mario kart?
If I bought a physical Nintendo chess set, I don't think anyone would claim a video of my gameplay would be Nintendo's property. By extension, a video of me playing a virtual nintendo chess game with my commentary should still be mine, after all, the story is being written by the players. I think that's fairly analogous to a commentary of a mario kart game.
Now it gets interesting with a role playing game like zelda perhaps. I certainly have a right to produce a gameplay from it. Do I have a right to record it? Why not? How is it really any different that recording a play with a physical object, something which is done every day. Nintendo may have the storyline, but they didn't create the actual play. That is a result of an authorized use of the game. Player runs over here, picks up a sword -- that's something the player did, not Nintendo.
I think in the end it boils down to what the lawyers can convince a judge is true, rather than what can be proven or what is the law.
Taking control of content which they only have partial legal right to is still very much illegal and copyright infringement. They are basically knowingly committing commercial piracy, including sending knowingly false take down notices (if they claim complete ownership). In times like that, the authors of said videos has a good chance to sue for damages.
I don't think that asserting ownership within YouTube is equivalent to asserting legal ownership of all of the IP involved. For example, I can't see them rebroadcasting any of these videos in another medium.
Some people view Let's Plays before buying a game. People aren't going to go to the trouble of recording Let's Plays without getting any kind of ad revenue from it. So people aren't going to bother recording Nintendo games anymore.
And they can just delete all the Nintendo videos they already have up. So now Nintendo doesn't have anyone promoting their games (for free to Nintendo) and isn't getting any of the very small amounts of ad revenue and is competing against a bunch of other games that do have Let's Plays up online.
Don't judge an industry by it's rotting old guard. Nintendo has been making blunder after blunder for quite some time and does not represent gaming as a whole.
Reddit has helped built a list[1] of studios and publishers who have given permissions for LPers to make videos, and the list is pretty comprehensive. Tons of developers and companies are 100% okay with and even promote it.
Also, with both next gen consoles supporting game play video natively, it's going to get bigger and bigger in the industry.
http://letsplaylist.wikia.com/wiki/%22Let%27s_Play%22-friend...
I haven't played many games since the early 2000s and I feel a bit like an old geezer stuck in the mentality of "back in my day..."
Definitely not nice, but stupid? I'm not sure about that. I have some doubts that Nintendo (being usually very good at not making their community angry IIRC) would do this without reason. Can we rule out that they actually noticed declining sales of some titles as Let's Play videos about them popped up?
I can't imagine they wanted a PA article on this though.
Let's run with that reasoning for a minute. That means that they did a study and found not only that the Let's Plays were costing them sales, but also that the lost revenue was small enough that it would be more profitable to keep the videos up and intercept the ad revenue, than to have them taken down entirely.
What that means is that the effect size they observed must have been tiny. As a consequence, to have observed a statistically significant correlation, they would have needed an extremely large sample size. Keep in mind that these are some very noisy variables they are supposed to have measured.
So in conclusion, yes I think we can rule that possibility out. Or at least, if they did notice declining sales, they were irrational for thinking that was sufficient evidence to take this action.
Maybe someone thought it'll make folks take their LPs down themselves without making much of a fuzz? But I admit it's not a very likely scenario.
I've seen the chilling effects of this sort of thing before, in the Machinima world, and you'd be amazed how much damage removing or limiting the top creators in the chain can do.
Yeah, there are artists who don't clear samples, but those records are released as white label (for fear of legal action), or, they remix the samples such they they are unrecognizable (by mechanical means).
This is just the sampling argument all over again. I don't see why it should be different. The real question here is how good is the content ID algorithm? Is it going to get triggered on seconds of unedited video footage? Audio? What if you are talking over it or overlay text on it?
If you can create something new & unique to beat the algo, that's awesome. If you are simply using Nintendo's IP in metadata or wholesale showing off the game unedited, to draw people to your videos, your content should get questioned (ala Vanilla Ice using Bowie's riff in Ice Ice Baby).
Take, for example, Gamecenter CX vs a long play where someone just records himself playing a game and barely adds any commentary over it.
Maybe the reasoning is that this is not very beneficial to Nintendo, since most of their games are visually at most a "Meh".
I can't tell you how many times my son has come to me and asked for a new game because of some YouTube videos that he has been watching
Edit: as a matter of fact, he wanted to play the WiiU not too long ago after watching NintendoLand playthroughs of the Zelda game. The WiiU that hasn't been turned on in MONTHS
And so we can clearly see Nintendo has lost its way and Minecraft is the the new Nintendo.
[1] https://twitter.com/notch/status/335045859156819969
In other words, they aren't even going to make very much money off of this in the short term, and they're driving the free advertising to their competition.
Someone posted this link here the other day. It's a good game. Nintendo could easily sell this on various platforms and app-stores.
(http://www.pokemon.jp/#/contents/enjoy/play_pass/2.html)
You could argue that videogames are somehow different. But they're not. If someone makes a video about having fun with their friends, then the game they're doing it in is almost incidental. For example: http://www.youtube.com/watch?v=uD5J5LEBVCk
Videos such as that one take a lot of work to make. It takes many hours to record the content, many hours to edit it, and a way to promote it once it's made. The game maker probably doesn't deserve any slice of revenue generated from that. The game is incidental.
The other thing I would like to know if anyone has more info, is if this in fact, affects Let's Plays. Maybe they were only going after machinima, or videos that show trailers or cutscenes. Is there any source where I can read more of that? I think this could be the crux of the issue: if they aren't trying to get money from Let's Plays, the move isn't so bad. EDIT: NVM, read the original source and they are claiming LP videos... that's sad, really.
What I find weird about this whole thing is that neither Nintendo or YouTube have issued an explanation of how things are going to work, and why they think the move is a good one. With all the backslash that this has created in the last week, I would think those companies would like to offer their side of the argument.
As far as I know when you use any recorded human product (voice, movement, etc.) you need a signed "release form" from the people involved in that - else you stand to be sued for damages (due to rights violation, nothing to do with copyright, although I guess the LPers could have a case there as well). Music artists, for example, need to sign one of these release forms to give their publisher the rights to their voice.
Considering that the LPs are 50/50 Nintendo/LPer couldn't the LPer's [in theory] lash back and demand royalties because Nintendo illegally become their publisher without acquiring release forms (the YouTube EULA is between the LPer and YT, not the LPer and Nintendo)? Or indeed demand damages that far exceed any form of profit they have lost from the adverts in the first place (rights violation)? Or am I completely wrong?