The other option available to Let’s Play is to claim that their videos constitute a “fair use” of Nintendo’s copyrighted material. “Fair use” is an exception to copyright law stating that under certain circumstances, the public is allowed to use copyrighted material without the copyright holder being able to sue them. For example, material may be used for criticism or education without being able to trigger a copyright claim.
There are four factors that get examined when looking at whether something qualified for the “fair use” exception:
- The purpose and character of the use, including whether such work is of a commercial nature or is for non-profit or educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market or value of the copyrighted work
Most of the debate on this issue is going to center around the first factor, which is also the one that the US Supreme Court has labeled the “primary” factor. The central examination taking place under this factor is whether the work claiming fair use is “transformative” in nature. If this seems really vague and unhelpful, that’s because it’s intended to be that way. Congress and the courts don’t want to strictly define the term and potentially limit some future legitimate use of the material. Therefore, it would be a mistake draw conclusions about Let’s Play videos simply by taking the dictionary definition of “transformative” and applying to say that the fair use exception applies (or doesn't). That said, most “transformative” works are held to fall into two categories; parody and commentary/criticism.
Since the Let’s Play videos are pretty clearly not parody, their only real chance of falling into the fair use exception is to qualify as a “commentary” on the gameplay. Obviously, your feelings on this matter are going to turn heavily on just what you feel a “commentary” is. Nintendo would certainly argue that “commentary” means something more substantial than a bunch of guys sitting around talking about playing a video game and that the term implies something a little bit more critical than what amounts to a “Long Look.” On the other hand, if you define commentary as “a descriptive spoken account of an event or performance as it happens,” then you probably think that Let’s Play qualifies. They are after all, describing their experience with a game as they are playing it, which seems to fit that definition.
Given that there is support for both sides, I would point out that this is an examination of just one of the four factors. The other three tilt more against Let’s Play; they are for-profit videos and those tend to receive less fair use protection than non-profit or educational videos. This puts them at risk under factor number two. Additionally, they show substantial portions of a game, in some cases the entire game. This puts them at odds with factor number three, which gives less protection to items that display significant portions of a copyrighted work. In other words, Let’s Play videos are likely going to have a hard time qualifying under fair use.
