It's worth noting that transformative doesn't necessarily mean slapping on voiceover and calling it a day, or the video not being the same experience as actually playing the game. Especially when you can counter those arguments pretty easily by pointing to how exposing game content regardless of the person not "experiencing" it, can affect sales and dissuade people from playing (not saying it's valid because obviously it doesn't have the quantification factor, but that's something the opposing side will argue in context of transformative works and video games), or at how the voiceover doesn't make any meaningful comment in regards to what the visual content is showing.
Courts typically take two questions into account when judging whether a work is transformative or not. Keep in mind that this is a grey area and relies on interpretation so courts can view things very differently from NeoGAF/etc:
1) Has the material you have taken from the original work been transformed by adding new expression or meaning?
2) Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
This is why I argued a while back that if Jim was taken to court, he would more likely lose for the way the visual content is used without actually doing anything with them. His commentary is completely exclusive to what was shown on the video. It's like borrowing uncited quotes from a book, making an irrelevant analysis and expecting fair use to apply when there's no relationship between the two things. Especially worse is publicizing the whole gaming YouTube's system, which the opposing lawyers would likely tear into.
To me, stuff like GamExplain falls under fair use since they're adding new information and meanings with existing content through their analyses, whereas I can't really see Jim's being fair use since his argument is so broad that it didn't require the visual content in order to create that position.
