Let’s Plays and Copyright Infringement
April 24, 2019 – Auz Burger
With the rise in Let’s Play videos, where someone records themselves playing a video game, then puts the recording on YouTube, it has come into question whether or not these videos are breaking any copyright laws. There has not been a precedent set yet on this issue, because no game developers have taken any Let’s Players to court over copyright infringement.
This is in part because game developers can see an increase in sales after their game has been aired on a high-profile streamers’ YouTube channel, so many seem somewhat reluctant to take these cases to court. For example, Ryan Clark, the design of the independent game “Crypt of the Necrodancer,” told the New York Times that he saw a $60,000 increase in sales after famous YouTuber Felix “Pewdiepie” Kjellberg played the game on his channel.
One of the major arguments against Let’s Plays is that for games with a storyline if you watch someone else play through the narrative, you now have no reason to buy the game yourself. While this is valid in some cases, there has been an abundance of evidence that sales can go up on a game if it is streamed. It is unclear though if Let’s Plays have harmed sales of any games.
The Digital Millennium Copyright Act (DCMA) gives copyright holders the right to take action if someone is displaying, reproducing, or distributing their work. Game developers have the rights to have entire playthroughs of games removed from a YouTube channel since there is still much debate on whether or not Let’s Plays count as fair use. They are completely reproducing the game for people who did not pay for it, so it can easily be considered copyright infringement, but the gaming industry seems reluctant to do so, allowing Let’s Players to flourish.
“The amount of content used [in a Let’s Play]—the fact it goes to the heart of the game itself—is way in excess of what any court up until now has said is fair use. You use too much of the content for it to qualify for fair use,” Mona Ibrahim, a video game attorney with the Interactive Entertainment Law Group, told Kotaku.
In the movie and music industry, a video similar to a Let’s Play would be removed instantly, but yet when it comes to streaming video games, there is an overall reluctance in the desire to bring these to court. Lawyer Mira Sundara Rajan, who specializes in intellectual property, says that once the precedent is set it has the potential to “transform the industry completely, and qualitatively change the relationship between the people who are playing games and the people making them.”
Taking a Let’s Play to court over copyright infringement could have major ramifications for Let’s Players everywhere. Let’s Play channels are some of the biggest on YouTube, so having this legal precedence could be disastrous financially for YouTube. There are also other programs that would feel the shift even harder than YouTube, like Twitch, which is primarily used for Let’s Plays and live streams of games.
Rajan said that “if there’s a symbiosis in the industry between those groups [gamers and developers], and there’s kind of a balance that’s been achieved, it may well be that things go ahead without the intervention of courts and copyright intervention suits… [but] it’s really hard to predict.”
There are some game developers who have given licenses or blanket permissions on their websites for their games to be used in Let’s Play videos, but not all are willing to do this.
Nintendo chose to enforce its copyright claims on their video games in the early days of Let’s Plays, by creating an affiliate program where the streamers are required to give the company a portion of their revenues. This is fair since they are making millions playing these games, and the developers are only getting potential sales out of the deal.
Currently the Let’s Play industry is a gray area legally speaking, but eventually, a developer will take a streamer to court and the precedence will be set, officially drawing the line in the sand for what is and is not considered copyright infringement for Let’s Players.