VIDEO GAMES, FAIR USE AND
THE INTERNET: THE PLIGHT OF
THE LET’S PLAY
Ivan O. Taylor Jr.
TABLE OF CONTENTS
Introduction .................................................................................................... 248
I.
Background ......................................................................................... 249
A. Fighting for Rights ...................................................................... 249
B. Start of a Hobby........................................................................... 251
II.
The Law as We Know It ..................................................................... 252
A. Copyright Law and its Expansion ............................................... 252
B. A Helpful Explanation ................................................................. 254
III.
Fair Use and Companies ..................................................................... 257
A. Midway v. Publications International .......................................... 257
B. Sony v. Connectix ....................................................................... 257
C. Sony v. Bleem ............................................................................. 258
IV.
Applying Fair Use to Let’s Plays ........................................................ 259
A. Resident Evil 5 (Co-Op) .............................................................. 260
1. Purpose and Character of Use ............................................... 260
2. Nature of Copyrighted Work ................................................. 260
3. Amount Used......................................................................... 261
4. Effect on the Market .............................................................. 261
5. Amounting to Fair Use .......................................................... 262
B. Flashback ..................................................................................... 262
1. Purpose and Character of Use ............................................... 262
2. Nature of Copyrighted Work ................................................. 263
3. Amount Used......................................................................... 263
4. Effect on the Market .............................................................. 264
5. Amounting to Fair Use .......................................................... 264
C. Ocarina of Time Speed Run ........................................................ 265
1. Purpose and Character of Use ............................................... 265
2. Nature of Copyrighted Work ................................................. 265
3. Amount Used......................................................................... 266
4. Effect on the Market .............................................................. 266
 B.A. 2011 Northern Illinois University, J.D. 2015 University of Illinois College of Law. I would
like to thank all of the JLTP Editors for their hard work, Prof. Paul Heald for his advice, and my family for
their love and support. And a special thank you to Molly Lindsey for everything that she does for JLTP.
247
248
V.
VI.
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5. Amounting to Fair Use .......................................................... 266
Recommendations ............................................................................... 267
A. Acquiescing ................................................................................. 267
B. Licensing ..................................................................................... 269
Conclusion .......................................................................................... 270
INTRODUCTION
In May 2013, YouTube users and video game enthusiasts were shocked
by recent developments where their communities overlapped. Nintendo of
America announced that having been a YouTube partner since February 2013,1
they had registered their intellectual property using YouTube’s Content ID
service.2 This allowed Nintendo to assert intellectual property claims over the
content of the video.3 The consequence of this was that any monetization that
would have gone to the video uploader would now be directed towards
Nintendo instead.4 This was met with extreme disapproval from the gaming
community, particularly from those who make “Let’s Play” videos for their
YouTube channels.5
What is a “Let’s Play?” “Let’s Play” is a general term used to refer to fan
generated content of a video game playthrough.6 Let’s Play is now often
recorded footage uploaded to a video sharing site, like YouTube, but originally
it started as screenshots uploaded to the Something Awful message forum.7
Another marker of a Let’s Play is the commentary provided by the creator;
usually highlighting the best moments of a video game or lampooning its most
ridiculous aspects.8
A month later in June, Nintendo backed away from their initial
monetization demands.9 Let’s Play creators on YouTube were once again
allowed to earn the ad revenue from their videos depicting Nintendo owned
1. Luke Plunket, Nintendo Forcing Ads on some YouTube “Let’s Play” Videos, KOTAKU (May 15,
2013, 9:45 PM), http://kotaku.com/nintendo-forcing-ads-on-some-youtube-lets-play-video-507092383.
2. Id.
3. How Content ID Works, GOOGLE, https://support.google.com/youtube/answer/2797370 (last visited
May 3, 2015).
4. Id.
5. Ian Miles Cheong, Nintendo Flexing Copyright Clout on YouTube Let’s Play Channels,
GAMEFRONT (May 15, 2013), http://www.gamefront.com/nintendo-flexing-copyright-clout-on-youtube-letsplay-channels/; Mike Futter, Nintendo Opts To Earn YouTube Ad Revenue on Videos Featuring Its Games,
GAME INFORMER (May 16, 2013, 7:48 AM), http://www.gameinformer.com/b/news/archive/2013/05/16/
nintendo-opts-to-earn-youtube-ad-revenue-on-videos-featuring-its-games.aspx.
6. Frequently Asked Questions, LET’S PLAY ARCHIVE, http://lparchive.org/faq (last visited May 3,
2015); see also Playthrough, WIKTIONARY, http://en.wiktionary.org/wiki/playthrough (last visited May 3,
2015) (defining playthrough as recording the playing of a video game from beginning to end).
7. Id.
8. Ben “Yahtzee” Croshaw, Let’s Talk About Let’s Plays, ESCAPIST (Mar. 8, 2011, 11:00 AM),
http://www.escapistmagazine.com/articles/view/columns/extra-punctuation/8703-Lets-Talk-About-Lets-Play.
9. Stephen Totilo, Nintendo’s Turn for a 180? ‘Let’s Play’ Drama Might Have Happy Ending,
KOTAKU (June 24, 2013, 11:10 AM), http://kotaku.com/nintendos-lets-play-drama-might-have-a-happyending-513818999.
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video games.10 This action by Nintendo is only the most recent that
illuminates the precarious position that Let’s Plays are in. Despite claims to
the contrary, there is no established legality as to whether Let’s Plays fall
under the fair use exception of copyright law.11 Those making these videos are
stuck with the hosting site’s policies regarding copyright law and fair use.12 A
shrugged shoulder is not an answer; content producers should have a more
substantive explanation.
This Note will focus on the applicability of the fair use doctrine to Let’s
Plays. It will consider whether Let’s Plays should be covered by fair use, the
likelihood of individual Let’s Plays attaining the threshold for fair use, and
alternatives for Let’s Plays to avoid copyright infringement. Part I will detail
the development of the video game industry and its use of the legal system to
protect itself, as well as the rise of Let’s Plays as a hobby. Part II explains the
expansion of copyright law and an explanation of the fair use doctrine. Part III
will explain how fair use has been utilized in lawsuits involving video game
companies. Part IV will apply fair use doctrine to Let’s Plays; analyzing
whether or not they would or could be covered. Part V gives options that
would benefit both those making Let’s Plays and video game companies.
I.
A.
BACKGROUND
Fighting for Rights
From its inception, the video game industry has fought for recognition
amongst other established media. Even in the early days of the PONG
machines,13 copying has been a prevalent companion of the video game
industry.14 Magnavox, the creator of the Odyssey video game console, was
able to prove a violation of its patent for television connected games.15
Midway fended off multiple attempts of copyright and trademark infringement
of its game Galaxian from various companies.16 Nintendo successfully fought
off claims from Universal Studios that the video game character Donkey Kong
violated the trademark of the film character King Kong.17
In another case, an American arcade owner bought second-hand Double
Dragon circuit boards from the “gray market” and imported them from
10. Id.
11. 17 U.S.C. § 107 (2012).
12. Copyright Notification, DAILY MOTION, http://www.dailymotion.com/legal/copyright (last visited
May 3, 2015); Copyright on YouTube, YOUTUBE, http://youtube.com/yt/copyright/index.html (last visited May
3, 2015); Copyright Policy, BLIP, http://blip.tv/copyright (last visited May 3, 2015); DMCA Notice,
GAMEANYONE, http://www.gameanyone.com/?p=statement (last visited May 3, 2015); Veoh Copyright Policy,
VEOH, http://www.veoh.com/corporate/copyright (last visited May 3, 2015).
13. Welcome to Pong-Story, PONG-STORY, http://www.pong-story.com/intro.htm (last visited May 3,
2015).
14. Arcade Pong, PONG-STORY, http://www.pong-story.com/arcade.htm (last visited May 3, 2015).
15. Magnavox Co. v. Chicago Dynamic Indus., 201 U.S.P.Q. 25, 28 (N.D. Ill. 1977).
16. In re Coin-Operated Audio-Visual Games and Components Thereof, No. 337-TA-87, USITC Pub.
1160 (June 25, 1981).
17. Universal City Studios v. Nintendo Co., 746 F.2d 112, 120 (2d Cir. 1984).
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Japan.18 Taito, the original creator of the circuit board, sued claiming a
violation of copyright law due to the arcade owner’s failure to acquire a license
prior to using the circuit boards in coin-operated machines.19 The court ruled
that the public performance of the game was copyright infringement and that
the first sale doctrine, used by the arcade owner as a defense of his action, only
affected the right of distribution, not performance.20
Despite these successes, not all court cases resolved themselves in the
video game company’s favor. A telling example is the suit between Galoob
Toys and Nintendo.21 Galoob Toys created a device called the Game Genie,
which allowed players to make minor changes to their games, like increasing
the lives of the character.22 Nintendo claimed copyright infringement due to
the changes the Game Genie makes to the video game.23 The United States
Court of Appeals for the Ninth Circuit ruled that the changes were not “fixed”
and thus no derivative work was created.24 The Court further stated that even
if the use of the Game Genie was derivative, it would fall under fair use.25 Its
use by families as a nonprofit activity presumptively makes it fair26 and
Nintendo failed to show any harm the original work would suffer in the
market.27 This fight over copyright is one Nintendo knows very well.
In the late 1980’s, Nintendo took on video rental company Blockbuster to
protect its copyright.28 Specifically, Nintendo brought suit to prevent
Blockbuster from making copies of instructional manuals for the Nintendo
video games it rented.29 Nintendo sought not only an injunction against
Blockbuster but also wanted to recover damages.30 Blockbuster agreed to no
longer make copies of instruction booklets, though they remarked how
Nintendo was actually upset at its failure to garner congressional support to
prevent video game rentals.31 The Computer Software Rental Amendments
Act32 prohibits the rental of computer software, but specifically exempts video
games from this prohibition.33 When the Act was being discussed in the
Senate and House of Representatives, the rental store lobby, Video Software
18. Red Baron–Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 277 (4th Cir. 1989). While the term
“gray market” seems to indicate a large organization, in this case it is just buying used circuit boards instead of
buying new boards directly from Taito.
19. Id.
20. Id. at 279–81.
21. Lewis Galoob Toys, Inc. v. Nintendo of Am., 964 F.2d 965 (9th Cir. 1992).
22. Id. at 967.
23. Id. at 968.
24. Id. at 969.
25. Id.
26. Id. at 970.
27. Id. at 971.
28. Ellen Forman, Blockbuster Sued in Copyright Case, SUN SENTINEL (Aug. 5, 1989),
http://articles.sun-sentinel.com/1989-08-05/business/8902240354_1_nintendo-blockbuster-copyright.
29. Id.
30. Ellen Forman, Nintendo Steps up Blockbuster Battle, SUN SENTINEL (Aug. 10, 1989),
http://articles.sun-sentinel.com/1989-08-10/business/8902250177_1_nintendo-blockbuster-manuals.
31. Ellen Forman, Nintendo Zaps Blockbuster Reproduction of Game Instructions Spurs Copyright
Lawsuit, SUN SENTINEL (Aug. 13, 1989), http://articles.sun-sentinel.com/1989-08-13/business/
8902250572_1_nintendo-blockbuster-video-games.
32. 17 U.S.C. §§ 109(b)–(d) (2012).
33. 17 U.S.C. § 109(b)(1)(B)(ii) (2012).
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Dealers’ Association, was able to successfully remove video games from the
exemption in the bill and final Act.34 This meant that video games could be
freely rented, lessening the overall number of individual games that would be
sold. While Nintendo succeeded in getting the injunction, Blockbuster was
prepared to either make its own informational cards or purchase alternate
instruction booklets for the games from an upcoming Video Software Dealers’
Association Convention.35
These battles, from both inside and out of the video game industry
demonstrate the persistence of the legally precarious nature that video games
continue to exhibit. The silver lining is the recognition that video games fall
into the audiovisual category36 of a copyrightable work.37
B.
Start of a Hobby
Let’s Plays have had a less tumultuous development. While some debate
exists, it is generally accepted that Let’s Plays started on the Something Awful
online forums.38 The first Let’s Plays were screenshots of games with
accompanying text by the uploader.39 Video Let’s Plays are most often
attributed to a Something Awful forum user going by the name “Slowbeef”
who uploaded a video of the game The Immortal.40 Slowbeef gives credit to
another user, “Vlaphor,” for starting this style of Let’s Play with the
playthrough of I Have No Mouth and I Must Scream.41 The popularity of Let’s
Play spilled to other members of the forum community.42 Let’s Plays soon
spread to other forum communities43 and video sharing sites, like YouTube.44
Let’s Plays are distinguished from other gameplay videos due to the
commentary provided by the person playing the video game.45 It’s best
described as being similar to going to a friend’s house and watching them play
through a video game,46 combined with watching a DVD with director’s
commentary of a movie made by a person who did not actually make the
34. Forman, supra note 31.
35. Id.
36. 17 U.S.C. § 102(a)(6) (2012).
37. Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 857 (2d Cir. 1982).
38. Frequently Asked Questions, supra note 6; Slowbeef, Did I Start Let’s Plays?, SLOWBLR (Jan. 30,
2013), http://slowbeef.tumblr.com/post/41879526522/did-i-start-lets-play. Slowbeef’s real name is Michael
Sawyer.
39. Frequently Asked Questions, supra note 6.
40. Slowbeef, supra note 38; History, WIKIA, http://infoonletsplays.wikia.com/wiki/History (last visited
May 3, 2015).
41. Slowbeef, supra note 38.
42. Id.; History, supra note 40.
43. See generally What is the Nuzlocke Challenge?, NUZLOCKE, http://nuzlocke.com/challenge.php
(last visited May 3, 2015) (describing Nuzlocke, a play style for the game series Pokémon, and how one can
record their run of a game through videos and screenshots).
44. See generally GAME ANYONE?: VIDEO WALKTHROUGHS, http://www.gameanyone.com (last visited
May 3, 2015) (describing a website that is dedicated to hosting videos of gameplay footage which includes
Let’s Plays and walkthroughs, which generally don’t have commentary).
45. Croshaw, supra note 8.
46. The History of the Let’s Play Archive, LET’S PLAY ARCHIVE, http://lparchive.org/history (last
visited May 3, 2015).
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movie.47 The purpose of a Let’s Play is to have a new experience with a video
game even if the observer does not have enough time to fully play through the
game.48 While not a substitute for playing the game, Let’s Plays help answer
questions the video game player might have, or demonstrate new ways to play
the game.49 Commentary styles vary by individuals, but the focus is put on
highlighting the video game itself, for the audience.50
II. THE LAW AS WE KNOW IT
A.
Copyright Law and its Expansion
As a common law doctrine, the fair use of copyrighted works developed
first in Great Britain as the Statute of Anne51 before being supplanted in the
United States as part of the Constitution.52 One of the earliest depictions of
this doctrine in the U.S. common law was articulated by Justice Story. 53 The
case of Folsom v. Marsh revolved around the supposed piracy of a twelve
volume biography of George Washington’s life, which included letters written
to and from the famous General and President.54 The infringing material was a
two volume biography, which recounted Washington’s life with some of his
letters interspersed throughout.55 One of the arguments of the Defendants was
that they had a “right to abridge and select” materials for their own new
work.56 Justice Story stated that in deciding questions of this sort, “we must
often . . . look to the nature and objects of the selections made, the quantity
and value of the materials used, and the degree in which the use may prejudice
the sale, or diminish the profits, or supersede the objects, of the original
work.”57 This notion of fair use was eventually codified in the Copyright Act
of 1976.58
Copyright law would see more enhancements with the improvement of
technology. Much like the passing of the Computer Software Rental
Amendments Act,59 the Digital Millennium Copyright Act (DMCA) of 199860
was Congress’s attempt to update copyright law. Part of this update was the
Online Copyright Infringement Liability Limitation Act (OCILLA).61 This
Act was a compromise between the copyright and online service provider
47. Slowbeef, Immortal Level 1 (with commentary), YOUTUBE
https://www.youtube.com/watch?v=KA1kIBwGhrk.
48. Croshaw, supra note 8.
49. Id.
50. Id.
51. Statute of Anne, 1710, 8 Ann., c. 19 (Gr. Brit.).
52. U.S. CONST. art. I, § 8, cl. 8.
53. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).
54. Id. at 345.
55. Id.
56. Id. at 347.
57. Id. at 348.
58. 17 U.S.C. § 107 (2012).
59. 17 U.S.C. §§ 109(b)–(d) (2012).
60. 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001 (2012).
61. 17 U.S.C. § 512 (2012).
(Apr.
26,
2011),
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industries.62 It allowed copyright owners the assurance of a quick removal of
their improperly displayed work from the Internet while allowing online
service providers to have a safe harbor from being liable for the individual acts
of users.63 For the online service providers to have this safe harbor, they must
expeditiously remove any infringing materials once the copyright owner brings
it to their attention, or face secondary liability for their inaction.64
This system seemed to work, except when it came to user generated
content like Let’s Plays. Falsely made claims of copyright infringement
caused the removal of videos, which were later returned due to successful
counterclaims by the video creators.65 Even with new processes meant to
assist in the removal of infringing works, like YouTube’s Content ID,66 issues
in the removal process are still possible.67 False claims can still be generated
by individuals signing up for the service and fraudulently claiming ownership
of videos.68 There is some solace in the fact that users can dispute their videos
being flagged by Content ID69 and make counter claims from their videos
being removed,70 but it need not be necessary.71
Even for the online service providers, OCILLA has not been a perfect fit.
YouTube has had to defend itself against multiple parties in a combined
lawsuit.72 Several groups, with Viacom as the main named plaintiff, brought
suit against YouTube claiming that it had knowledge73 of the thousands of
infringing videos on its website. This suit is an attempt to remove the online
service provider’s safe harbor protections.74 Although YouTube won summary
judgment dismissing the suit in the district court,75 the United States Court of
Appeals for the Second Circuit vacated that order and remanded the case for
further proceedings.76 The Second Circuit stated that a reasonable jury may
find actual knowledge of the infringing content for at least some of the videos
hosted by the website.77
Another video hosting site, Veoh, faced similar adversity. It successfully
62. S. REP. NO. 105–109 (1998).
63. H.R. REP. NO. 105–155 (1998).
64. 17 U.S.C. §§ 512(a), (j) (2012).
65. WIKIA, supra note 40.
66. GOOGLE, supra note 3. The system allows companies and individuals to register with YouTube
what works they have the copyright for, then YouTube can scan videos on their site to see if they infringe upon
the work claimed to be owned by the registered individual.
67. Mike Masnick, YouTube Fails In Explaining Flood Of Takedowns For Let’s Play Videos, TECH
DIRT (Dec. 12, 2013, 9:58 AM), http://www.techdirt.com/articles/20131211/17365325537/.
68. David Kravets, Rogues Falsely Claim Copyright on YouTube Videos to Hijack Ad Dollars, WIRED
(Nov. 21, 2011, 6:30 AM), http://www.wired.com/threatlevel/2011/11/youtube-filter-profiting/all/.
69. Dispute a Content ID Claim, GOOGLE, http://youtube.com/yt/copyright/content-id-disputes.html
(last visited May 3, 2015).
70. Counter Notification Basics, GOOGLE, http://youtube.com/yt/copyright/counter-notification.html
(last visited May 3, 2015).
71. Kravets, supra note 68.
72. Viacom, Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012).
73. Id. at 26.
74. See 17 U.S.C. § 512(c)(1)(A) (2012) (outlining the safe harbor provisions an online service provider
may have).
75. Viacom Int’l, Inc. v. YouTube, Inc., 718 F. Supp.2d 514, 529 (S.D.N.Y. 2010).
76. Viacom, 676 F.3d at 41–42.
77. Id.
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negated the claims of an adult entertainment producer by acting within the
bounds of the OCILLA safe harbor provision.78 However, the legal battle with
Universal Music did not work out as well for Veoh. Despite again successfully
defeating the claims of the opposition and being ruled to be within the safe
harbor of OCILLA,79 the lawsuit took its toll on Veoh, which had to file for
Chapter 7 Bankruptcy.80 This still didn’t stop Universal Music, as the appeal
had only been resolved by the Ninth Circuit in 2013.81
This is the realm in which Let’s Plays have to exist. A realm in which
video game companies have learned to doggedly fight for legal recognition and
where video hosting sites are still being sued, sometimes into fiscal oblivion,
despite the deal of a safe harbor.82 Finding a legal justification for Let’s Plays
in this world is a difficult challenge.
B.
A Helpful Explanation
When confronted with an opportunity to give lower courts guidance in
how they should examine fair use defenses in copyright infringement cases, the
United States Supreme Court actually gave a unanimous explanation of section
107.83 As an affirmative defense,84 the codified fair use exception to copyright
infringement reflects the ideas exemplified by Justice Story.85 Congress wrote
the fair use exception into the Copyright Act of 1976, with minor updates to
include 17 U.S.C. § 106A in 1990, as such:
Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use
the factors to be considered shall include—
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation
78. IO Group, Inc. v. Veoh Networks, Inc., 586 F. Supp.2d 1132 (N.D. Cal. 2008).
79. UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp.2d 1099 (C.D. Cal. 2009).
80. Eliot Van Buskirk, Veoh Files For Bankruptcy After Fending Off Infringement Charges, WIRED
(Feb. 12, 2010 3:49 PM), http://www.wired.com/business/2010/02/veoh-files-for-bankruptcy-after-fendingoff-infringement-charges/.
81. UMG Recordings, Inc. v. Shelter Capital Partners, L.L.C., 718 F.3d 1006 (9th Cir. 2013). Veoh
only still exists as a video hosting site because it was bought by another company. Ty McMahan, Veoh Lives
On — Behind the Acquisition of the Video Site, WALL ST. J. (April 8, 2010 9:06 AM),
http://blogs.wsj.com/digits/2010/04/08/veoh-lives-on-behind-the-acquisition-of-the-video-site/.
82. UMG, 718 F.3d 1006 (2013). This case shows a situation where a Let’s Play, Veoh, is sued
completely into bankruptcy despite safe harbor provisions.
83. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
84. Id. at 590.
85. Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841).
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to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors.86
In the case of Campbell v. Acuff-Rose Music, Inc., the Supreme Court
identified and explained the meaning of each part of the exception by first
reiterating Congress’s intent of continuing the judicial doctrine of fair use.87
The Court further stated a preference for case-by-case analysis, as opposed to
bright-line rules.88 All four factors were to be considered in conjunction with
the others and weighed according to the circumstances, with the listed
purposes merely showing examples of past instances in which fair use has been
found.89
In the first factor, the Supreme Court said that courts should look towards
“the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes.”90 While the
examples listed in the preamble of section 107 may be a helpful guide to
judges,91 the purpose is to see if the new work merely supplants the original or
“instead adds something new, with a further purpose or different character,
altering the first with new expression, meaning, or message.”92 Ultimately the
question is to what extent is the work transformative.93 Though not absolutely
necessary to prove transformative use, “the goal of copyright, to promote
science and the arts, is generally furthered by the creation of transformative
works[;] . . . [they] lie at the heart of the fair use doctrine’s guarantee of
breathing space within the confines of copyright.”94 In Campbell, the Supreme
Court deemed that parody has a claim as transformative work, like comments
and criticisms, for “provid[ing] social benefit, by shedding light on an earlier
work, and, in the process, creating a new one.”95 The Court quickly notes that
this does not give free reign to those making parodies.96 As for the commercial
nature of the work in Campbell, the Court stated that there is no presumption
for or against fair use depending upon whether the new work was not for-profit
educational or commercial.97 The fact that a work was commercial and not
nonprofit is only a factor that weighs against finding fair use to be weighed
along with the others.98
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
17 U.S.C. § 107 (2012).
Campbell, 510 U.S. at 577 (1994).
Id.
Id. at 578.
17 U.S.C. § 107(1) (2012).
Campbell, 510 U.S. at 578 (1994).
Id. at 579.
Id.
Id.
Id.
Id. at 581.
Id. at 583–84.
Id. at 584.
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For the second factor, the nature of the copyrighted work gets less than an
elaborate explanation.99 The Supreme Court stated that “[t]his factor calls for
recognition that some works are closer to the core of intended copyright
protection than others, with the consequence that fair use is more difficult to
establish when the former works are copied.”100 The Supreme Court agreed
with the findings of the District and Circuit Courts that the original song was a
creative work,101 as such it is in the core of copyright protections as opposed to
the fringes for strictly informational works.102 However, this fact does not help
much for a parody case like Campbell.103
The third factor asks whether “the amount and substantiality of the
portion used in relation to the copyrighted work as a whole” was reasonable in
relation to the purpose of copying.104 This relates back to the first factor as
“the extent of permissible copying varies with the purpose and character of the
use.”105 Courts are to look at the quantity of the original material used as well
as its quality and importance.106 A substantial portion of the original work
being copied verbatim may indicate a lack of transformative purpose in the
first factor or cause greater market harm as indicative of the fourth factor.107
When applied to parody, the Supreme Court indicated that the need to “conjure
up” the original would require a greater copying, even of the original’s
heart.108 It was important how the defendant in Campbell added its own
originality to its parody song after copying the opening bass riff.109
The final factor is “the effect of the use upon the potential market for or
value of the copyrighted work.”110 With great clarity, the Supreme Court said
one must “consider not only the extent of market harm caused by the particular
actions of the alleged infringer, but also ‘whether unrestricted and widespread
conduct of the sort engaged in by the defendant . . . would result in a
substantially adverse impact on the potential market’ for the original.”111 The
inquiry should also include a look at harms to the market of derivative works
as well as for the original.112 When works are transformative, the possibility of
market substitution of the original becomes less certain, limiting any quick
inference of market harm.113 The Supreme Court continued by stating that like
a scathing review, a parody can destroy the market for the original, but does
not produce harm under the Copyright Act; the focus is the difference between
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
Id. at 586.
Id.
Id.
Id. (quoting Feist Publ’ns, Inc. v. Rural Tel, Serv. Co., 499 U.S. 340, 348–51 (1991)).
Campbell, 510 U.S. at 586.
17 U.S.C. § 107(3) (2012).
Id. at 586.
Id. at 587.
Id.
Id. at 588.
Id. at 589.
17 U.S.C. § 107(4) (2012).
Campbell, 510 U.S. at 590.
Id.
Id. at 591.
THE PLIGHT OF THE LET’S PLAY
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257
criticism suppressing demand and infringement usurping it.114 As for the
derivative market, where the original creator would develop it themselves or
license others to do so, if none exists, like for criticism and parody, that adds to
the new work being of fair use.115
Campbell laid an articulable foundation for Let’s Plays to follow when
arguing their actions as being covered by fair use.
III. FAIR USE AND COMPANIES
A.
Midway v. Publications International
Cases involving video game companies and the affirmative defense of fair
use of copyright infringement are limited. Enough exist, however, to create a
better understanding of how the Supreme Court’s explanation of fair use is
utilized in respect to video games. The first case was decided only a few
months after Campbell.116
In Midway Mfg. Co. v. Publications Intern., Ltd., Midway,117 as plaintiff,
was suing the defendant for copyright and trademark infringement for its
unauthorized player’s guide book for the video game Mortal Kombat.118
Defendant claimed the defense of fair use in its summary judgment motion,
relying on the idea that its book was a compilation and not a derivative work
using a substantial amount of the original.119 The Court rejected the notion
that the book was non-infringing as Campbell indicated that substantiality had
both a quantitative and qualitative aspect.120 As a highly factual issue, the
Defendant failed to meet its burden precluding entry of summary judgment in
its favor.121
B.
Sony v. Connectix
In an expressly direct confrontation of fair use, Sony brought suit against
a company for its commercial sale of an emulator software program for
computers.122 Defendant Connectix used the non-copyrightable elements of
Sony’s PlayStation video game console to create its Virtual Game Station123
computer program through reverse engineering.124 In order to do this,
114. Id. at 591–92.
115. Id. at 592–93.
116. Campbell was decided in March 1994 and Midway Mfg. Co. v. Publ’n Intern., Ltd. was decided in
May 1994. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Midway Mfg. Co. v. Publ’n Intern.,
Ltd., No. 94-C-1005, 1994 WL 188531 (N.D. Ill. May 12, 1994).
117. Former video game developer and publisher best known for the game series Mortal Kombat.
118. Midway, 1994 WL 188531, at *1.
119. Id. at *2.
120. Id.
121. Id. at *3.
122. Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 598 (9th Cir. 2000).
123. This program allowed one’s computer to read discs created for use on the Sony PlayStation. Thus
allowing the play of Sony PlayStation games without the use of a Sony PlayStation. Aaron Giles, Aaron’s
Computing History, AARON GILES (last visited May 3, 2015), http://www.aarongiles.com/history/.
124. Sony, 203 F.3d at 598.
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Connectix had to repeatedly copy Sony’s copyrighted BIOS125 in order to
create its emulator, but none of Sony’s BIOS appeared in the Virtual Game
Station.126 The Ninth Circuit concluded that from the facts of this case and
from its own precedent, Connectix’s intermediate copying of Sony’s BIOS
program was fair use.127
First, the Ninth Circuit reached this conclusion by reasoning that the
necessity of having to copy the copyrighted material to get to the noncopyrighted material could make it fair use.128 Second, the Court gave a lower
degree of protection to Sony’s BIOS than other literary works, as the
Copyright Act is for protecting expression not ideas or the functional aspects
of software programs.129 For the amount and substantiality of the portion used,
this factor would normally go against Connectix, but the Ninth Circuit gave
this little weight because of its precedent with intermediate infringement with
no infringing content in the final product.130 The Ninth Circuit also determined
that the Virtual Game Station was mildly transformative; being innovative for
allowing play where one does not have a Sony PlayStation console.131 Finally
for the effect upon the market, this weighed in favor of fair use as the Video
Game Station was transformative and Sony attempting to have a monopoly
over what can play their games is an affront to creative expression wanted by
copyright law.132
C.
Sony v. Bleem
Sony saw further defeat in the Ninth Circuit in its suit against the
company Bleem.133 Bleem, like Connectix previously, had created its own
emulator software for PlayStation video games.134 However, this suit targeted
Bleem’s use of screenshots of video games for Sony’s PlayStation in their
advertisements for its emulator.135 The Ninth Circuit noted that the use of the
screenshots in commercial advertising affects both the first and fourth factors
in the fair use analysis.136 The Court concluded that the use of the screenshots
is comparative advertisement.137 This weighs the first factor in favor of fair
use, as it goes to the benefit of the purchasing public with little loss to the
integrity of Sony’s copyrighted material.138 For the second factor, Bleem’s
claim of fair use was neither hurt nor helped as the video games are creative in
125. Basic Input-Output System. The software that allows the Sony PlayStation to work, i.e. play Sony
PlayStation video games.
126. Id. at 601.
127. Id. at 602.
128. Id. at 603 (quoting Sega Enterprises Ltd. V. Accolade, Inc., 977 F.2d 1550 (9th Cir. 1992)).
129. Id.
130. Id. at 606.
131. Id.
132. Id. at 607.
133. Sony Computer Entm’t Am., Inc. v. Bleem, L.L.C., 214 F.3d 1022, 1030 (9th Cir. 2000).
134. Id. at 1024.
135. Id.
136. Id. at 1026.
137. Id.
138. Id. at 1027.
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259
nature, but the games’ representations in screenshots are merely inanimate
slivers.139 In the third factor, the Court found towards fair use as screenshots
were a small amount of the video game.140 With the final factor, the Ninth
Circuit accepted that the market at issue was for the screenshots themselves,
but still leaned towards fair use, as precedent indicated that this type of market
does not negatively affect Sony.141 Bleem’s use of the screenshots was
deemed fair, negating Sony’s summary judgment to the contrary.142
IV. APPLYING FAIR USE TO LET’S PLAYS
While fair use is and should be applied on a case-by-case basis,143 those
creating Let’s Plays would benefit greatly from some examples to aid them in
making their creations more in-tune with a fair use norm. These examples are
not meant to demonstrate all types of Let’s Plays, only some of those that
exist.144 First, for a video, the cooperative Let’s Play of Resident Evil 5145 by
Proton Jon,146 with assistance from his friend Super Jeenius,147 gives an
example of a Let’s Play compared to the factors for achieving fair use. Proton
Jon was one of the early creators of Let’s Play videos on the Something Awful
forum.148 Second, a screenshot Let’s Plays should also be analyzed. The
screenshot Let’s Play by Ben “Yahtzee” Croshaw of the video game
Flashback149 demonstrates another facet of Let’s Plays that can run afoul of
copyright infringement. As an early member of the Something Awful forum,
Croshaw contributed to the creation of Let’s Plays.150 Last, is a speed run151
video by Cosmo Wright of the video game The Legend of Zelda: Ocarina of
Time.152 Wright is known153 for this particular style of video that shares the
139. Id. at 1028.
140. Id.
141. Id. at 1029.
142. Id. at 1029–30.
143. Campbell, 510 U.S. at 577.
144. An aspect of fair use not fully discussed in this Note is the education exception. The Let’s Play by
Bobbin Threadbare of the video game Deus Ex demonstrates this very well. The last third of each video of the
Let’s Play gives a well-researched explanation of how the game’s lore was developed from our beliefs and
understanding of the world; focusing on conspiracy theories, literature/film, science, and philosophy.
ThreadbareInc,
Deus
Ex:
The
Lecture
Series,
YOUTUBE
(Nov.
15,
2014),
https://www.youtube.com/playlist?list=PL9H-oYsI40xb7gcRVeZ9cTWamY7kWDPV9.
145. Proton Jon, Resident Evil 5 (Co-Op), YOUTUBE, https://www.youtube.com/playlist?list=
PLyiQDjAWHJJa4YJ1aBaqKfLg_fFRL6NHJ (last visited May 3, 2015).
146. Proton Jon, YOUTUBE, https://www.youtube.com/user/ProtonJonSA (last visited May 3, 2015).
Proton Jon’s actual name is Jonathon Wheeler.
147. SuperJeenius, YOUTUBE, https://www.youtube.com/user/SuperJeenius (last visited May 3, 2015).
SuperJeenius is actually Jake Middleton.
148. knezy312lp, NC Interview With ProtonJonSA, NINTENDO CHRON. (May 8, 2013),
nintychronicle.wordpress.com/2013/05/08/nc-interview-with-protonjonsa/.
149. Yahtzee, Flashback, LET’S PLAY ARCHIVE (Feb. 2, 2007), http://lparchive.org/Flashback/ (last
visited May 3, 2015).
150. Croshaw, supra note 8.
151. Speed Runs are games played as quickly as possible using tricks and innate glitches within the
software and hardware. While not exactly a Let’s Play, videos of speed runs have the same markers of a Let’s
Play.
152. CosmoSpeedruns, OoT Glitched All Medallions in 1:18:05, live for NumberSMW Marathon,
YOUTUBE (Nov. 2, 2012), http://www.youtube.com/watch?v=o0LqjrkpZ1A.
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same hallmarks of Let’s Plays, showing off a video game with commentary
throughout, and is equally affected by issue of fair use.
A.
1.
Resident Evil 5 (Co-Op)
Purpose and Character of Use
The first factor looks at “the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational
purposes.”154 First, it is important to weigh the transformative nature of the
commentary. This Let’s Play spans the entire length of the video game,
showing off the majority of the content. Jon and Jake provide commentary
throughout the entire playthrough. This commentary is what arguably makes
their work transformative; by adding a “new expression, meaning, or message”
to the original game.155 The greater the transformative nature, the less
significance is given to other factors that weigh against fair use.156 Jake,
having never played Resident Evil 5, gives a perspective of a new player
experiencing the game for the first time. Occasionally, Jake commented on
some of the more ridiculous aspects of the game, like viruses creating a
gigantic monster with more mass than possible from the original creature.157
Jon gives detailed explanations on how to play the game, tips to make the
game easier or harder, as well as where to find hidden messages and items in
the game itself. Each video ending in this Let’s Play involves Jon going over
any objects of interest missed by him and Jake through their playthrough of the
game.
The second aspect considers the commercial or nonprofit nature of the
new product. As a YouTube Partner,158 Jon earns ad revenue from videos he
uploads to his channel. Since the Supreme Court specifically stated that
commercialization is just one of the factors and itself not determinative,159 Jon
earning revenue for his videos does not per se exempt his videos from the fair
use exemption. Further analysis is required.
2.
Nature of Copyrighted Work
The second factor looks at the nature of the original work being copied.160
153. Roland Li, Making Money as a Zelda Speed Runner, POLYGON (Jan. 9, 2014 12:00 PM),
http://www.polygon.com/features/2014/1/9/5280786/making-money-zelda-speed-runner.
154. 17 U.S.C. § 107(1) (2012).
155. Campbell, 510 U.S. at 579.
156. Id.
157. Proton Jon, Let’s Play Resident Evil 5 – Part 13 – Chapter 3-1, YOUTUBE (March 29, 2013),
https://www.youtube.com/watch?v=hq5Aj88jo6U&list=PLyiQDjAWHJJa4YJ1aBaqKfLg_fFRL6NHJ&index
=13.
158. What is the YouTube Partner Program?, GOOGLE, https://support.google.com/youtube/answer/
72855 (last visited May 3, 2015); Let’s Play: ProtonJon, TV TROPES, http://tvtropes.org/pmwiki/pmwiki.php/
LetsPlay/ProtonJon (noting that ProtonJon became a YouTube partner on October 18, 2010).
159. Campbell, 510 U.S. at 584.
160. 17 U.S.C. § 107(2) (2012).
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261
As the purpose of copyright is to protect creative and artistic expressions,161
video games, like songs, fall squarely in this protection.162 For parodies, since
copying the expressive work is necessary, this prong is useless for the fair use
analysis.163 Let’s Plays must also copy expressive works, by extension making
this prong unnecessary in this instance.
3.
Amount Used
For the third factor, it asks “whether the amount and substantiality of the
portion used in relation to the copyrighted work as a whole are reasonable in
relation to the purpose of the copying.”164 This looks at the quantity of the
materials used as well as the quality.165 Let’s Plays seemingly run afoul of this
factor, as illustrate with the example of Resident Evil 5. The videos use a
substantial amount of quantity of the video game through its display of a
majority of the game. The quality is swept up with that display. However, the
Supreme Court noted how parody necessitated the allusion to the original
work, conjuring up the original’s more distinctive features and memorable
aspects.166 Let’s Plays are necessitated by the same allusion. The purpose of
the commentary is to reflect what is visually being seen. This would be a
reasonable use much like a parody using the opening of a song.167 But, unlike
the parody song at issue in Campbell, which deviated from the original,168 the
Let’s Play uses only the original work.
4.
Effect on the Market
Finally is “the effect of the use upon the potential market for or value of
the copyrighted work.”169 There is a heavy burden to show that there has been
negligible market harm, but Let’s Plays are generally bolstered by multiple
factors. First, Let’s Plays are not substitutes for playing the actual game.170
Second, some companies do not seem to view Let’s Plays as negatively
affecting their market. Sony has implemented a function in its new PlayStation
4 video game console that will allow its users to upload snippets of gameplay
video to the hosting sites like YouTube without requiring a need for
commentary.171 Nintendo of Europe asked its fans to make their own Let’s
161. Campbell, 510 U.S. at 586 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348–
351).
162. Midway Mfg. Co. v. Artic Intern., Inc., 704 F.2d 1009, 1012 (7th Cir. 1983) (“[V]ideo games are
copyrightable as audiovisual works under the 1976 Copyright Act . . . .”).
163. Campbell, 510 U.S. at 586.
164. Id. (internal citations omitted).
165. Id. at 587.
166. Id. at 588.
167. Id. at 589.
168. Id. at 594–96.
169. 17 U.S.C. § 107(4) (2012).
170. Croshaw, supra note 8.
171. One Button to Rule Them All – Devs Talk up PS4’s Share Button, PLAYSTATION OFFICIAL MAG.
(June
24,
2013,
10:57
AM),
https://web.archive.org/web/20140806021653/http://www.
officialplaystationmagazine.co.uk/2013/06/24/one-button-to-rule-them-all-devs-queue-up-to-praise-ps4sshare-functionality/.
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Plays of the game Xenoblade Chronicles to promote the recently released
video game.172 Conversely, there are some companies who fear disruption of
sales, like Sega demanding removal of footage from its game series Shining
Force from YouTube prior to the release of a new game in the series.173
For this Let’s Play, Jon specifically indicates during his video
commentary that his viewers should play along with him, allowing them to
better utilize his advice for acquiring all of the hidden items and treasures that
he missed.174 While it would be possible for the creator of Resident Evil 5 to
license out the creation of a Let’s Play, or to do it themselves, they have not
done so. This favors the work being fair use.175
5.
Amounting to Fair Use
There are two bumps that cast some doubt on whether a court would find
the Let’s Play of Resident Evil 5 as protected by fair use. The first is the
transformative nature of the work. While having the commentary and voicing
critiques of the game in the videos is helpful towards making a work
transformative, there is no indication as to how much is needed and as to the
requisite quality of the commentary. However, the commentary is continuous
throughout the Let’s Play and it creates something more than just the game
alone would. Second is the monetary aspect. As fair use is an affirmative
defense,176 proving one’s lack of negative effect on the market would be
difficult to show. Telling his audience to play the game along with him could
help show that he is himself trying to increase the market for the game. Also,
Jon earning ad revenue as a YouTube Partner, although it should not weigh
against the work being fair use. With these concerns in mind, whether this
Let’s Play would be fair use would still fall to the court.
B.
1.
Flashback
Purpose and Character of Use
Looking at the transformative nature of screenshots poses a different
perspective than that of a video. The purpose is the same as for video Let’s
Plays, showing off the game to an audience so that they can gain an
appreciation for the work. While this purpose of the use has not changed, the
character has a wholly unique spin. Instead of a video depicting the entirety of
the work, the screenshots show only a still of the game at particular moments
172. Create Your Own Let’s Play Videos Contest Launches for Xenoblade Chronicles, NINTENDO (Oct.
4, 2011), http://www.nintendo.co.uk/News/2011/Create-your-own-Let-s-Play-video-contest-launches-forXenoblade-Chronicles-252839.html.
173. Timothy Geigner, Sega Goes Nuclear on YouTube Videos of Old Shining Force Game, TECH DIRT
(Dec. 7, 2012, 7:32 AM), http://www.techdirt.com/articles/20121206/17321021296.
174. Proton Jon, Let’s Play Resident Evil 5 – Part 1 – Chapter 1-1, YOUTUBE (Feb. 7, 2013),
https://www.youtube.com/watch?v=m8nAHyYuZfo&list=PLyiQDjAWHJJa4YJ1aBaqKfLg_fFRL6NHJ&ind
ex=1.
175. Campbell, 510 U.S. at 592.
176. Id. at 590.
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263
throughout its gameplay. These individual snapshots are more likely to be
seen as something new, if the Ninth Circuit’s opinion in Bleem is to be
indicative.177 The screenshots depict a different character than the original
game; instead of the audience being shown the direct mechanics of the game
itself, they must infer them through interpretation of the stills in addition to the
given explanation.
For Flashback specifically, Ben “Yahtzee” Croshaw strings the static
action together with colorful language178 to not only entice the audience to
continue to the next screenshot, but to also impose additional humor.179
Croshaw added additional onomatopoeic words and speech bubbles to the stills
to instill a different level of humor,180 furthering the distance of his depiction
of the game from the original.
As for the commercial nature of the use, there is none. The screenshot
Let’s Play of Flashback was uploaded to the Something Awful forum.181
Forum members do not receive any compensation for creating Let’s Plays,
outside of feedback from other members and personal satisfaction. Even if
there were some monetary compensation, it is still only one part of all of the
factors.182
2.
Nature of Copyrighted Work
There would be no difference between the analysis for this video game
and any video game. Even with this game being older,183 it had already been
established that video games fall under audiovisual works.184 Being a work of
creative and artistic expression, the video game Flashback, like all other video
games, would be within the core of copyright protection.185
3.
Amount Used
The quality and quantity of the original work used is further differentiated
with screenshots than from videos. While videos necessitate the use of a vast
quantity of the original’s materials, screenshots use a significantly less
amount.186 By using only occasional stills of the original video game,
screenshot Let’s Plays have less to worry about any overuse of the original that
would detract from the transformative nature of the new work or interfere with
177. Sony Computer Entm’t Am., Inc. v. Bleem, L.L.C., 214 F.3d 1022, 1022 (9th Cir. 2000).
178. Yahtzee, Flashback, Part 2, LET’S PLAY ARCHIVE, http://lparchive.org/Flashback/Update%202/
(last visited May 3, 2015).
179. Id.
180. Yahtzee, Flashback, Part 3, LET’S PLAY ARCHIVE http://lparchive.org/Flashback/Update%203/
(last visited May 3, 2015).
181. Yahtzee, supra note 149.
182. Campbell, 510 U.S. at 584.
183. Flashback was released in 1992.
Flashback: The Quest for Identity, MOBY GAMES,
http://www.mobygames.com/game/flashback-the-quest-for-identity (last visited May 3, 2015).
184. 17 U.S.C. § 102(a)(6) (2012); Red Baron–Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 278 (4th
Cir. 1989); Midway Mfg. Co. v. Artic Int’l. Inc., 704 F.2d 1009, 1012 (7th Cir. 1983).
185. Campbell, 510 U.S. at 586 (quoting Feist, 499 U.S. at 348–51).
186. Bleem, 214 F.3d at 1030.
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the original’s market value. This notion is similar to how the Ninth Circuit
held in Bleem, that the limited use of the screenshots favored the new work
being of fair use.187 If a video Let’s Play requires the substantial use of the
original work, similar to how a parody would require the substantial portion of
the original, then it stands to reason that a screenshot Let’s Play that can
conjure up the essence of the original work with less is more likely to be
viewed as fair use.
In the Let’s Play of Flashback, Croshaw is able to guide the audience
through the entirety of the video game.188 Even though this still does reflect
the essence of the original work, it does so without using the entirety of the
original. By using his words to fill in the gaps between the depicted actions in
each screenshot, Croshaw conjures up the original without the need for the
expansive use of the original. This lessens the possible detraction from the
transformative nature of Croshaw’s work.
4.
Effect on the Market
The need to show a negligible effect upon the market of the original work
is still the hardest factor to prove, even for screenshot Let’s Plays. Croshaw is
noted for his belief that Let’s Plays will never be substitute for playing the
original video game oneself.189 This notion is more readily seen with a
screenshot Let’s Play. The video game Flashback is an audiovisual work.190
The screenshot Let’s Play strips away the music and sound and limits the
visuals to occasional snippets. If one wanted to actually experience the game,
they would have to purchase their own copy.
Another reason that the effect on the market would be minimal is that the
video game at issue is no longer being offered by the developer.191 However,
in this instance, the video game Flashback has been remade and released for
current audiences to experience.192 The release of this remake seems to
suggest that the Croshaw’s actions have done nothing to the market.
5.
Amounting to Fair Use
The screenshot Let’s Play appears to have fewer issues than a video Let’s
Play would. Primarily, screenshots have less to worry about than videos when
it regards the amount of the original work being used. It further helps that the
screenshots are heavily dependent upon the creator to give them meaning and
to connect them into a coherent display. While it is still important for creators
to make their commentary have some meaning, the lessor’s use of the original
work cannot harm them. As for the effect on the market, for Flashback in
187. Id. at 1028.
188. Yahtzee, supra note 149.
189. Croshaw, supra note 8.
190. Tracey Lien, Flashback is Being Remade by Original Developer, Coming to XBLA and PSN this
Year, POLYGON (Apr. 11, 2013, 8:37 AM), http://www.polygon.com/2013/4/11/4211846/flashback-is-beingremade-by-original-developer-coming-to-xbla-and.
191. Id.
192. Id.
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265
particular, any effect would seem to be for the benefit of the creators of the
original game. Without an interest in the original, it is unlikely a remake
would have been created.193 Since the original video game was released in
1992,194 such an interest is more likely to have been sustained through the
existence of the screenshot Let’s Play of the game.195
C.
1.
Ocarina of Time Speed Run
Purpose and Character of Use
In this instance, Cosmo Wright presents a different style of video than
what occurs traditionally with a Let’s Play. Wright plays through a video
game, specifically Legend of Zelda: Ocarina of Time, by utilizing glitches and
tricks to accomplish the game in the shortest time possible.196 The video
Wright produced is transformative in two ways. First, like traditional Let’s
Plays, Wright provides commentary.197 His focus, though, is on teaching the
audience how to perform the various methods he utilizes to bypass aspects of
the video game198 instead of critiquing or explaining secrets therein. Second,
by highlighting the glitches of the video game,199 Wright demonstrates a new
message from the video game that would not otherwise be expressed. This
expression of the video game’s glitches and inherent quirks is different from
what would normally be seen.200
As for the second aspect, whether the use is for commercial or noncommercial purposes, this video was done for a commercial purpose.201
Wright receives donations from his fans to assist him in making content.202
However, Wright also creates videos for the explicit purpose of raising money
for charities.203
2.
Nature of Copyrighted Work
There is nothing more that could be stated here that has not already been
stated previously.204
193. Id.
194. MOBY GAMES, supra note 183.
195. Yahtzee, supra note 149.
196. Li, supra note 153.
197. CosmoSpeedruns, supra note 152.
198. Id.
199. Id.
200. See Li, supra note 153 (explaining one technique used by Wright to position the character at the
intersection of two walls and being pushed between the geometry to a normally inaccessible location).
201. CosmoSpeedruns, supra note 152.
202. Li, supra note 153.
203. See id. (discussing how Wright along with others participating in a marathon of speed running
video games have raised money for the Prevent Cancer Foundation and Doctors Without Borders).
204. See previous analysis in Part IV(a)(ii) and Part IV(b)(ii).
266
3.
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[Vol. 2015
Amount Used
In comparison to how much of the original work is used, Wright’s videos
are closer to that of a screenshot Let’s Play than a video Let’s Play. Instead of
the hours of video depicting gameplay, as demonstrated by the Resident Evil 5
Let’s Play,205 the speed run of Ocarina of Time lasts for less than ninety
minutes.206 Wright’s video is also favorably seen as being reasonable use of
the original work. By focusing on only the smallest aspects of the game,
Wright uses only what is needed to show how to get through the game as
quickly as possible.
4.
Effect on the Market
This factor, while still difficult to show negligible harm to the original’s
market, has a different quality as to what type of harm could occur. Wright’s
video depicts the video game’s flaws to the audience and exploits them.207
Arguably, since companies spend months to years testing their product to
ensure the least amount of glitches and bugs,208 they would not want the flaws
of their product displayed for everyone to see. However, such a display would
be akin to a harsh critique suppressing demand for the original work—a harm
not covered by the Copyright Act.209 Also, as this work shows the flaws
within the game, it is not something for which the video game companies
themselves would wish to produce.
5.
Amounting to Fair Use
For this work, it exhibits features from both video and screenshot Let’s
Plays. Similar to screenshots, Wright’s speed run uses less than the entirety of
the original work. The part the speed run does use is necessitated by the nature
of what he is using the work for, the same for a traditional video Let’s Play.
By providing commentary over the gameplay about how to do the special
tricks to exploit the video games glitches, Wright incorporates his own new
message into the original. The fact that Wright is being compensated for
creating this video is still important to note as one of many factors. Wright’s
speed run could have a harmful effect on the market for the original by
highlighting the flaws within the game. However, similar to how critiques can
suppress demand for the original without violating copyright law, as long as
the speed run does not supplant the original, any possible harm would not
factor into weighing against fair use.
205. Proton Jon SA, supra note 145.
206. CosmoSpeedruns, supra note 152. The video lasts for eighty minutes but less time than that is
dedicated to actual gameplay.
207. Id.
208. See generally Jimmy Thang, The Tough Life of a Games Tester, IGN (Mar. 29, 2012),
http://www.ign.com/articles/2012/03/29/the-tough-life-of-a-games-tester (discussing the hardship of video
game tester indicating the long work hours and the several months of work to find all of the bugs in a video
game).
209. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590–91 (1994).
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V. RECOMMENDATIONS
Unlike other large media corporations, like the Record Industry
Association of America, video game companies have not litigated to prevent
the distribution of their intellectual property on the Internet.210 Despite the
limited likelihood of a lawsuit against a Let’s Play creator, succeeding at trial
is not the only way for Let’s Plays to avoid infringing upon copyright law.
A.
Acquiescing
Companies would be better served by allowing these Let’s Plays to
continue. It could benefit their own market by encouraging players to create
Let’s Plays to win contests,211 thus ensuring that some people will buy their
product. Or at least prevent the outrage of fans turning against them for
limiting their enjoyment of video games, as Nintendo learned firsthand.212
Fans are what video game companies thrive on for their market.213
Acquiescing to them keeps them happy and willing to continue to purchase
their products. Angering them would only lead to negative publicity, much
like what befell the Record Industry Association of America.214 Other
incidents in the video game industry have shown that fans will loudly and
repeatedly voice their displeasure for a company’s actions.215
BioWare, the creator of the Mass Effect series, caught the ire and outrage
of their fans when the ending of the third game was thought to have ruined the
story of the entire series.216 In an effort to salvage their reputation with their
fans, BioWare released new content for the third game in an effort to modify
the original ending.217 Another example is when the game XCOM was
announced in 2010 as a revival to the dormant series.218 Its change from a
strategy game to a first person shooter was seen as a betrayal to the fans of the
original series.219 Fans were only appeased when the game XCOM: Enemy
210. 12-year-old Settles Music Swap Lawsuit, CNN (Feb. 18, 2004, 1:09 AM),
http://www.cnn.com/2003/TECH/internet/09/09/music.swap.settlement/.
211. See NINTENDO, supra note 172 (discussing a Let’s Play video contest).
212. Plunket supra note 1; Futter supra note 5.
213. See generally Timothy Geigner, How Important Are YouTube Game Videos To Game
Companies?, TECHDIRT (Jul. 8, 2013, 8:01 PM), https://www.techdirt.com/articles/20130702/06235623689/
how-important-are-youtube-game-videos-to-game-companies.shtml (“Not only are these gaming videos not
doing you any harm, they’re helping you in ways you may not have considered.”)
214. Robert VerBruggen, Ripping the RIAA, AM. SPECTATOR (Jan. 1, 2008), http://spectator.org/articles/
44324/ripping-riaa.
215. See generally Sparky Clarkson, Mass Effect 3’s Ending Disrespects Its Most Invested Players,
KOTAKU (April 12, 2013, 3:15 PM), http://kotaku.com/5898743 (originally published April 3, 2012)
(discussing the dissatisfaction fans felt for the end of a video game); Stephen Totilo, Why I’m Glad BioWare
Might Change Mass Effect 3’s Ending for the Fans, KOTAKU (March 21, 2012, 6:30 PM), http://kotaku.com/
5895369 (discussing fans’ dissatisfaction with the game).
216. Clarkson, supra note 215; Totilo, supra note 215.
217. Totilo, supra note 215.
218. Gus Mastrapa, X-COM Returns As First-Person Shooter, WIRED (Apr. 14, 2010, 12:28 PM),
http://www.wired.com/2010/04/xcom/.
219. Noah Antwiler, E3 2010 Coverage - Day 2, Deus Ex 3, BLIP, http://blip.tv/the-spoony-experiment/
e3-2010-coverage-day-2-deus-ex-3-3797951; AngryJoeShow, XCOM E3 2011—New Details and Features,
YOUTUBE (June 23, 2011) http://www.youtube.com/watch?v=NO_pxLg4AFo.
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Unknown, a return to the strategy gameplay of the original series, was
announced.220 Even Nintendo earned kudos from fans for sponsoring EVO
2014, the biggest fighting game tournament of the year.221 Especially, when in
2013, Nintendo attempted to have one of its games blocked from being
shown.222
Other companies have also felt the ire of their fans. Electronic Arts223
had the dubious honor of being a repeat winner of Consumerist’s Worst
Company in America competition for 2012 and 2013.224 Thankfully for it, it
managed to lose out early on in 2014.225 Ubisoft226 has also suffered woe in
2014. Fan accusations include dressing up video game footage for trailers,
only for it to be less remarkable upon release, failing to give a reasonable
response as to why the newest game in their Assassin Creed series could not
have playable female characters, that same game being released with glitches
and with an embargo preventing reviews from being viewable until twelve
hours after the game launched.227 Even with the apologies for the failed launch
of its game, Ubisoft still has to deal with concerned fans not trusting future
games from the developer.228
These examples show that catering to one’s fans is most beneficial for
video game companies that wish to have repeated business.
220. AngryJoeShow, XCOM E3 2012 AJ Interview, YOUTUBE (June 9, 2012) http://www.youtube.com/
watch?v=E_XLGJSIoyo.
221. Aevee Bee, Your Guide To Evo 2014, The Year’s Biggest Fighting Game Tournament, KOTAKU
(July 10, 2014, 5:00 PM), http://kotaku.com/your-guide-to-evo-2014-the-years-biggest-fighting-game1603060216; Steven Bogos, Nintendo Will Officially Sponsor the Next EVO Fighting Tournament, ESCAPIST
MAG. (July 7, 2014, 3:57 AM), http://www.escapistmagazine.com/news/view/135927-Nintendo-WillOfficially-Sponsor-The-Next-EVO-Fighting-Tournament.
222. Bogos, supra note 221.
223. Also known as EA, Electronic Arts is a video game developer best known for the Madden and
NCAA Football series.
224. Chris Morran, EA Makes Worst Company in America History, Wins Title for Second Year in a
Row!, CONSUMERIST (Apr. 9, 2013), http://consumerist.com/2013/04/09/ea-makes-worst-company-in-americahistory-wins-title-for-second-year-in-a-row/.
225. EA’s Worst Company in America Reign Comes to an End With Loss to Time Warner Cable,
CONSUMERIST (Mar. 24, 2014), http://consumerist.com/2014/03/24/eas-worst-company-in-america-reigncomes-to-an-end-with-loss-to-time-warner-cable/.
226. Video game developer best known for their Assassin’s Creed series.
227. Paul Tassi, Congratulations Ubisoft, You’re the New EA, FORBES (Nov. 12, 2014, 10:56 AM),
http://www.forbes.com/sites/insertcoin/2014/11/12/congratulations-ubisoft-youre-the-new-ea/.
228. Christian de Looper, Ubisoft Apologizes for ‘Assassin Creed: Unity’ Launch with Free Games,
TECH TIMES (Nov. 28, 2014, 4:17 PM), http://www.techtimes.com/articles/21137/20141128/ubisoftapologizes-assassins-creed-unity-launch-free-games.htm.
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B.
269
Licensing
A likelier alternative for Let’s Plays is for them to be licensed or
sanctioned by the video game company. This possibility has already been seen
through Sony implementing a video sharing option in their new PlayStation
4229 and Nintendo of Europe asking for players to make their own Let’s Play of
the game Xenoblade.230 Sony has gone even further than just allowing the
sharing of videos and live stream of video game footage from its new
console.231
The division that focuses on PC games, Sony Online
Entertainment, has given its blessing to allow for “video creators” to utilize
game content for their videos, including Let’s Plays.232 Sony Online
Entertainment also allows for the video creators to monetize their videos on
video hosting sites as long as they follow the division’s promulgated policy
constraints.233
Nintendo has taken a different approach. Claiming an inability to review
the thousands of requests asking for permission to use its intellectual property,
Nintendo has a blanket position of declining any request.234 However,
Nintendo does state that relevant laws may allow for use of its property even
without its permission and that interested parties should consult with an
attorney to determine the extent permitted by law.235 Microsoft has yet another
approach for its games on the Xbox video game console and for personal
computers running a Windows operating system.236 While Microsoft will
grant a limited license to use its game content to make things, like Let’s Plays,
any attempts at monetization or earning some type of compensation would
void the license.237
Beyond these three main video game companies, other companies have
also voiced their opinions as to whether they will let their games be used for
Let’s Plays. 2K Games238 has stated that fans can post images of its games on
the Internet as long as it is for “non-commercial” purposes and does not spoil
the plot of the games.239 Violation would result in immediate take down
notice, and 2K Games explicitly states that it has the ability to have its material
removed at any time, for any reason.240 2K Games is aware that Let’s Plays
229. PLAYSTATION OFFICIAL MAG., supra note 171.
230. NINTENDO, supra note 172.
231. Broadcasting Your Gameplay, PLAYSTATION 4 USER’S GUIDE, http://manuals.playstation.net/
document/en/ps4/share/broadcast.html (last visited May 3, 2015); Sharing a Video Clip, PLAYSTATION 4
USER’S GUIDE, http://manuals.playstation.net/document/en/ps4/share/videoclip.html (last visited May 3, 2015).
232. What is Player Direct?, SONY ONLINE ENT., https://www.soe.com/player-direct (last visited May 3,
2015).
233. Id.
234. Company FAQs, May I Use Nintendo Game/Music/Graphics/Website Content?, NINTENDO,
http://www.nintendo.com/corp/faq.jsp#graphics (last visited May 3, 2015).
235. Id.
236. Game Content Usage Rules, XBOX, http://www.xbox.com/en-US/developers/rules (last visited May
3, 2015).
237. Id.
238. Video game developer; library includes Borderlands, BioShock, and X-COM.
239. 2K David, Policy on Posting Copyrighted 2K Material (Dec. 16, 2014, 1:00 AM), 2K,
http://support.2k.com/hc/en-us/articles/201335153-Policy-on-posting-copyrighted-2K-material.
240. Id.
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would necessitate showing spoilers and have created a caveat that would allow
the showing of spoilers in that context,241 and allowed fans to ask whether a
particular display would be a violation.242
Blizzard Entertainment243 also allows for its video games to be used in
personal creations by its fans, but only for non-commercial uses and on free
access websites.244 The only caveat Blizzard has is for websites that offer both
free access and a premium access for a fee.245 Double Fine Productions246 has
a fully open policy, encouraging its fans to make videos, Let’s Plays and to
monetize them if they wish to.247 Frictional Games248 has also given its fans
the freedom to monetize videos based on its video games.249 Valve250 gave
permission for its video games to be used for non-commercial use, but does
allow for its fans to monetize its videos through YouTube’s Partner program or
other similar programs.251
By giving some type of license, video game companies would achieve
three things. First, they would avoid having to deal with the legal quandary as
to whether Let’s Plays generally fall under fair use. Outside of a direct suit,
which would only end badly for the company even if they win, the answer still
wouldn’t be clear. Second, the fans of the video game companies would
recognize those companies as caring for their desires. Many companies see no
reason to deny their fans the opportunity to enjoy video games however they
choose.252 Third, a license could allow the companies to make money through
licensing fees. Such a fee would still depend on the fans, but the option would
allow them to continue making Let’s Plays without fear of possibly violating
copyright law.
VI. CONCLUSION
Let’s Plays could very well fall under the protection of the fair use
doctrine. By providing commentary over the gameplay, they can create a new,
transformative work from the original. Although some of the creators of Let’s
Plays are earning revenue from the use of the video game company’s original
241. Id.
242. Id.
243. Video game developer; library includes World of Warcraft, StarCraft, and Diablo.
244. Blizzard
Video
Policy,
BLIZZARD
ENT.,
http://us.blizzard.com/en-us/company/legal/
videopolicy.html (last visited May 3, 2015).
245. Id.
246. Creator of the video games Psychonauts and Brütal Legend.
247. Frequently Asked Questions, DOUBLE FINE PRODUCTIONS, http://www.doublefine.com/about/ (last
visited May 3, 2015).
248. Created the Penumbra series and Amnesia series.
249. Jens, YouTube Monetization, Permissions to do Creations Based on Your Work and the Alike, (Nov.
13, 2013, 10:20 AM), FRICTIONAL GAMES, http://www.frictionalgames.com/forum/thread-23849.html.
250. Creator of the Portal series, Half-Life series, and Team Fortress series.
251. Legal Info: Valve Video Policy, VALVE, http://www.valvesoftware.com/videopolicy.html (last
visited May 3, 2015).
252. See generally WHOLETSPLAY, www.wholetsplay.com/wiki/doku.php (last modified Aug. 28, 2014,
5:01 AM) (listing a majority of video game developers and their stance on allowing Let’s Plays of their
games).
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271
work253 that does not prevent the new work from being transformative. As
long as the original work is not being supplanted in the market and the
company is not being denied the opportunity to create their own derivative
work, the Let’s Play can coexist with the original work. Video game
companies are increasingly seeing the value of Let’s Plays and their fans’
enjoyment of those works.254
253. See generally Plunket, supra note 1 (discussing a move by Nintendo that prevents streamers from
making advertising money on the Let’s Play videos they upload).
254. E.g. Game Content Usage Rules, XBOX, http://www.xbox.com/en-US/developers/rules (last visited
May 3, 2015) (“[w]e know that people like you . . . love our games and sometimes want to use things like
gameplay footage, screenshots, music, and other elements of our games . . . to make things like machinima,
videos, and other cool things”).