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Nintendo going after Youtube Let's Play videos
- Thread starter LiK
- Start date
Do you understand the difference between the words "copy" and "copyright"?
Simple question.
Velcro Fly
Member
It's no different than having a popular website that gets a ton of page views from different people and placing ads all over the place and generating revenue.
There is a big difference between saying "I don't think people should be able to use Nintendo IPs to make money on YouTube" and "I don't think people should make money from YouTube at all"
PataHikari
Banned
As someone who has made a Let's Play let me tell you it is in fact a lot of work.
Of course, I know better then to think I can or should make any money off it.
GAF YOU AMAZE ME SOMETIMES! SeriouslyI would not have expected GAF to come out full-force against LPers. Yipes.
Nobody's coming out full force against LPers. At most people are saying Nintendo is within their rights to do this.
(well there are like two dumb people saying they need to get "real jobs", but whatever)
I don't think it's necessarily a good idea, but this is not a new concept. Like Youtube has said FOR AGES, you can't just play a game and put it up and monetize it and feel like it has to stick. It's right there in black and white.
This is not hard.
PataHikari
Banned
Uhhh we're agreeing here.
My statement is that you shouldn't really be expecting to make any money based off a recording of someone else's work. I have no problem with people making original videos and making money based off that.
T
thepotatoman
Unconfirmed Member
Most good lets plays provides just as much criticism and satire as giant bomb does during their quicklooks, TNTs, and other features.
Velcro Fly
Member
My apologies.
uggh.. what you are getting into here is where the whole legal process makes the normal person's head spin.
Yes in both cases, copyright exists... But that isn't to say that the new song exists without ramifications to the producer. at that point either the two parties come to an agreement, or it goes before a court who then passes judgment.
although technically you DO have to actually claim copyright. See Night of the Living Dead for a textbook case on oops when you don't.
On whether playing the game is "transformative" enough... well, I'm going to play devil's advocate a bit here.
I think there's a spectrum between "tools", "creative software" and "creative works".
Tools are things like paint brushes, canvas, pianos and other instruments, etc. You use them to create your own original works. The manufacturers of the brushes and music instruments don't assert a copyright over the musical or art pieces you make with them.
Creative software is stuff like Photoshop and GIFmakers. You're using someone's proprietary, copyrighted software to make your own creations, but the licenses in those software allow you to assert copyright over anything you create (but there are still patents / copyright over the software itself). But the owners are also entitled to assert restrictions over what you create (there are video editing software licenses that can be revoked; you can't distribute their fonts, etc.) Sharing platforms like Youtube are similar - Youtube doesn't assert copyright over videos you share using their service, but they are entitled to impose restrictions on what you do with the site.
Creative works are the end product - the movies, music, photos, stories, etc. that people create.
And I guess the question that some people have raised is: are games "creative software" (a tool or platform for making and sharing your own creations) or a "creative work" (the end-product of someone's creativity).
And I think the majority of the time, the answer is going to be the latter - there are too many artistic creative elements (art, design, characters, plot, music, etc.) that make games creative works, and not "tools" for creating something original.
There are certain games that straddle the line - Mario Paint (or Wii Music) being prime examples. If I post a video of a Mario Paint song I've composed originally, there's a good argument that the song belongs to me, and Mario Paint was just the tool / software I used to create it. Even though I'm "playing" Nintendo's game, I'm using it to create something entirely original, as with Photoshop, and you can argue that Nintendo implicitly licensed the software for people to create their own works with it.
But my speed-run of a level in Mario Galaxy? Sure, I'm adding my own "original elements" in the particular combination of button presses I use (which is part of the overall experience Nintendo designed for me), but the majority of the work remains Nintendo's creation - the level design, artwork, characters and music. And this is where most LP videos fall. You can add your own original commentary on top of it, but you're still performing Nintendo's creative work. EDIT: and yes, it's "your video" - but it features someone else's copyrighted work, so it's infringing. Just like a video camera in a movie theater is "your video" of someone else's work.
The 100% royalties isn't an "automatic entitlement", just an example that copyright holders are allowed to assert rights over infringing works. They can ask they be removed from circulation, demand to be paid royalties, demand only a portion be excised, etc. In this case, Nintendo had a lot of options about how it wanted to assert its rights - it could have asked the videos be taken down; it could have issued cease and desists against the video makers, etc. It just went for an option where it allowed the videos to remain, but got revenues from ads. They were "automatically entitled" to those options by virtue of copyright; they just had a choice of which course of action to pursue.
I think there's a spectrum between "tools", "creative software" and "creative works".
Tools are things like paint brushes, canvas, pianos and other instruments, etc. You use them to create your own original works. The manufacturers of the brushes and music instruments don't assert a copyright over the musical or art pieces you make with them.
Creative software is stuff like Photoshop and GIFmakers. You're using someone's proprietary, copyrighted software to make your own creations, but the licenses in those software allow you to assert copyright over anything you create (but there are still patents / copyright over the software itself). But the owners are also entitled to assert restrictions over what you create (there are video editing software licenses that can be revoked; you can't distribute their fonts, etc.) Sharing platforms like Youtube are similar - Youtube doesn't assert copyright over videos you share using their service, but they are entitled to impose restrictions on what you do with the site.
Creative works are the end product - the movies, music, photos, stories, etc. that people create.
And I guess the question that some people have raised is: are games "creative software" (a tool or platform for making and sharing your own creations) or a "creative work" (the end-product of someone's creativity).
And I think the majority of the time, the answer is going to be the latter - there are too many artistic creative elements (art, design, characters, plot, music, etc.) that make games creative works, and not "tools" for creating something original.
There are certain games that straddle the line - Mario Paint (or Wii Music) being prime examples. If I post a video of a Mario Paint song I've composed originally, there's a good argument that the song belongs to me, and Mario Paint was just the tool / software I used to create it. Even though I'm "playing" Nintendo's game, I'm using it to create something entirely original, as with Photoshop, and you can argue that Nintendo implicitly licensed the software for people to create their own works with it.
But my speed-run of a level in Mario Galaxy? Sure, I'm adding my own "original elements" in the particular combination of button presses I use (which is part of the overall experience Nintendo designed for me), but the majority of the work remains Nintendo's creation - the level design, artwork, characters and music. And this is where most LP videos fall. You can add your own original commentary on top of it, but you're still performing Nintendo's creative work. EDIT: and yes, it's "your video" - but it features someone else's copyrighted work, so it's infringing. Just like a video camera in a movie theater is "your video" of someone else's work.
PsySal said:
The 100% royalties isn't an "automatic entitlement", just an example that copyright holders are allowed to assert rights over infringing works. They can ask they be removed from circulation, demand to be paid royalties, demand only a portion be excised, etc. In this case, Nintendo had a lot of options about how it wanted to assert its rights - it could have asked the videos be taken down; it could have issued cease and desists against the video makers, etc. It just went for an option where it allowed the videos to remain, but got revenues from ads. They were "automatically entitled" to those options by virtue of copyright; they just had a choice of which course of action to pursue.
Yes, but that's where the slippery slope starts. A game is not a book. Or a piece of music or a movie. A closer example would be, I dunno, 3DSMax. You don't see autodesk going around and try to prevent graphical artists to make money out of using their software. Or it'd be like Blizzard going after pro players making money by playing SCII.
Seriously, games are in some kind of grey area, there needs to be more precise laws for this, because it's a mess.
It's not hard.
Did you create it? If the answer is yes, it's yours. If the answer is no, then you don't own the copyright.
Simple.
The laws were different back then. You actually had to claim copyright at that time. That is no longer true.
GAF YOU AMAZE ME SOMETIMES! Seriously
Who is GAF?
In that thread, most of the responses will be akin to, "Well, duh," and it will be all of one page long.
A general rule of thumb is that EVERYTHING is more work than it seems.
Anyway, I think it's a bit of a stretch for Nintendo to say that if someone makes a video of themselves playing their game then they have rights to that video. IMO, it's Nintendo content only if someone is replicating a video taken from Nintendo's channel. If someone makes an original video of themselves playing a game they bought it's more than a bit greedy to try to call dibs. I suppose that by Nintendo's argument, if I make a video of my living room the furniture manufacturer can claim that it contains their content. Sounds ridiculous to me.
Anyway, I think it's a bit of a stretch for Nintendo to say that if someone makes a video of themselves playing their game then they have rights to that video. IMO, it's Nintendo content only if someone is replicating a video taken from Nintendo's channel. If someone makes an original video of themselves playing a game they bought it's more than a bit greedy to try to call dibs. I suppose that by Nintendo's argument, if I make a video of my living room the furniture manufacturer can claim that it contains their content. Sounds ridiculous to me.
This man knows what's up. It's often a testament to the amount of work it actually takes when something looks effortless.
PataHikari
Banned
A creative work printed on a piece of material. You posses the material the creative work is printed on, but not the right to make a copy of the work.
More exposure to indie games...helps sales of indie games? What a shocker.
Do you think a company like NINTENDO needs such exposure? Honest question. LP's really help exposure on titles that are underrated or independent, both of which would be hard to apply to something that has the Nintendo name to it.
If you didn't create it, it's not yours. Simple.
If you had a little dongle that went between your controller and the console/PC while you were playing the game, and it recorded your inputs, that input string would belong to you. If you made commentary over a game video, the commentary would belong to you.
They kill the incentive for many people to make Let's Plays for their games since they cannot profit from them, and as a result less Nintendo videos will be posted on YouTube, resulting in less exposure and lower sales.
Exposure matters regardless of the popularity of the title.
Mr. Enigma
Member
Also, for those that think it's silly to make money playing games on the Internet, look at Twitch TV, which is exploding right now for single personalities. One of the main guys, Towelliee, says he makes about $6,000 a month doing what he does (which is A LOT). Personalities like MANvsGAME and LethalFrag have exploded into financial juggernauts as well. Siglemic makes a fortune just speedrunning Super Mario 64 (what he makes in donations alone is totally staggering; Notch donated $1,800 to him in one day during one of his 24 hour marathons).
Playing video games can most certainly be considered a real job in 2013.
Playing video games can most certainly be considered a real job in 2013.
jgwhiteus - excellent point. I think it absolutely depends on the software. For instance, if it weren't in the EULA (which I'm sure it is), I don't know if the publisher of RPGMaker could by default claim copyright infringement for a video of someone LP'ing a game CREATED with RPGMaker.
but in the cases we are talking about, the games are not being used to create a performance.. instead the playing of the game itself (the creative work) is the actual performance.
but in the cases we are talking about, the games are not being used to create a performance.. instead the playing of the game itself (the creative work) is the actual performance.
That really depends on the content and the player, of course.
HCBailly (he plays all kinds of JRPGs), I think, does a practice run right before playing the actual game itself. As far as I know he does 100% runs and has great knowledge about every single game he plays. When there are different versions of the game then he'll show off these things. I can imagine that taking up quite some time, though most of it is probably spent on preperation.
I've also watched a Silent Hill Shattered Memories one by VoidBurger. She showed off all the endings and collectibles and I imagine just capturing that footage takes forever. She also has great knowledge about the Silent Hill franchise.
ChipCheezum does great Metal Gear Runs. IIRC he'll play through the game and then sit down with a buddy to comment on the video. Watching that video is way more interesting than playing the game as he knows everything about the games he's playing. I think he usually does 100% runs as well. His Metal Gear Solid 1 run is a combination of Twin Snakes and the PS1 version. He'll show off both versions and switch between them from time to time explaining the differences in detail.
SuperGreatFriend on Youtube is another great one. I think the quality dropped a little recently when he started doing Live Commentaries on Twitch but his Deadly Premonition run is still my favorite Let's Play of all time. He puts so much work and thought into his videos. When the main character talked about certain movies then SGF included a bit of footage of that movie and talked about it a bit as well. He did a 100% run as well and showed even more of the game than you'd experience if you played it yourself. I think that he lost his save at one point and wouldn't have been able to complete it 100%... he just re-played 8 hours or so just to keep the quality up. His Xbox Live Indie Game videos are superb as well. You should definitely give his channel a try, though I'm not sure if he monetizes his videos or not. They're all available on Blip as well.
Yes, I absolutely think this exposure helps companies even the size of Nintendo; why wouldn't it? The same principles are at work. The only difference is that the impact is comparability smaller.
Refreshment.01
Member
This pretty much it. Leting "law" aside (law not justice) even if violates "copyright". Nintendo should be the wiser to let this one slip.
But wait, you get consumers siding with Nintendo? If this is such a big problem for Nintendo then why don't they come up for an internal solution to share this type of content on their platform. But, yea, asking for them to actually do something pro consumer is asking way too much.
You ignored the first part when i say is not a 1:1 situation, it was just a comparison to stablish a point. The spirit of my post was, "how much money does one "let's player" make? Is it worth it to pursue them when there are bigger issues cutting in to your profits laying around? How about the important marketing work some of this guys do for them?
The bold is what i mean. Also please if you can, post examples related to videogames not other media.
Is the profit been made out of the game or out of the person playing the game?
Jake Tower
Banned
Ok, so if the inputs and commentary belong to you, why can Nintendo make money off it?
Can you see how this is a two way street?
Mr. Enigma
Member
Or, maybe he could be more schrewd in a business sense and not do something for free if he's going to be sore about it later.
Velcro Fly
Member
It's true for me at least about seeing a game and wanting to play it. Happens with watching LPs. Happens with watching speedruns. I've never wanted to play Wind Waker more than I did seeing Cosmo take the world record back. How true that is for others and if it correlates to more sales, especially since many games that are popular to LP are basically out of print and you have to buy used, would be difficult to approximate.
Again my hope is that some of the bigger YouTube gaming partners out there will figure out a way that will make Nintendo happy but also allow their content creators to still upload videos featuring Nintendo stuff.
Again my hope is that some of the bigger YouTube gaming partners out there will figure out a way that will make Nintendo happy but also allow their content creators to still upload videos featuring Nintendo stuff.
PataHikari
Banned
They own the copy they bought, and can thus rent it out. Because it's perfectly within your rights to let other people rent your property. Again, they can't make new copies. But they can rent or sell any copies they own.
EmCeeGramr
Member
He created a mod for free, didn't sell it because he knew that it would be wrong, and other people made money off of it.
He's also an active LPer, BTW.
Saying "be more shrewd business wise" is a bit of a hilarious stance to take when you're advocating that people roll dice with a 1 in a million chance that they'll become a superstar whose ad revenue (generated from a medium that has known about its own possible legal destruction at any possible moment for over half a decade) can fully support themselves and family.
Mr. Enigma
Member
Okay, so using that logic, why is it okay for Nintendo to profit from Let's Plays that feature someone's commentary?
PataHikari
Banned
Or maybe not everything is about making money.
The big channels have little to worry about. They will have already had arrangements with Nintendo.
This only affects the small fries. And only in regards to money, because the creator of the derivative work still owns the copyright to it.
good point
Mr. Enigma
Member
You're right, it's not. But this guy is obviously sore about not making anything from his work, so maybe he should think about it next time.
what we were talking about was something they DID create, and during the process used something else that someone else created. The Verve absolutely held copyright on Bittersweet Symphony.. but that doesn't mean that they didn't infringe on another copyright in the process.
Yes, it is still true. Not only do you have to still claim copyright, but you have to claim copyright on revisions as well. I mean don't get me wrong.. It's as simple as Copyright 2013. but yes, you do still have to claim it. Why do you think there are so many different licenses out there in the public domain world (GCC, Creative Commons, etc)? I mean you sure as hell better claim some sort of ownership right to it... or you are guaranteed to get screwed. Unless of course you are creating it already under another license.
because that's what they agree to by uploading their video to youtube.
Mr. Enigma
Member
This is why people should really be mad. Not just because Nintendo is taking away the ability for people to make money, but in the sense that Nintendo is doing the exact same thing they say YouTube people can't do. Nintendo is simply reversing the process; the root activity is still there. If a YouTuber truly owns the commentary and whatever else they add to a gameplay, Nintendo should not be able to profit off that.
EmCeeGramr
Member
You're right, he should sell his work and then issue copyright claims on anyone not shrewd enough to realize that building a career in such a way is fraught with risk.
People would still be mad if Nintendo chose not to put ads onto the video (there by not allowing the LPers or Nintendo to have ads on the video) or if they had taken the video down (same thing but worse as it can result in bannings).
The only difference would be the arguments people would be making really.
PataHikari
Banned
Good thing Nintendo's only demanding money from videos of their games!
Stop acting like they're barging into LPers homes and taking all their money.
EleventhDoctor
Banned
umm.. no, it's not the same thing. Nintendo still has rights to portions of that creation (the portions that are using their copyrighted material exceeding Fair Use).. See the previous discussion. Copyright over one product doesn't negate copyright over the other. In this case, YouTube and its TOS are the mediators and both parties are agreeing to those terms by partnering with YouTube.
Mr. Enigma
Member
Uh, at what point did I even say that? How did I even imply that?
Jake Tower
Banned
Well said. There is some awesome 'new frontier' entertainment media stuff going on in front of our very eyes. When I'm at home, I more frequently check YouTube for something to watch than cable TV. YouTubers are creating content I find more relevant to my interests, in a much more convenient format that television.