Every game Pewdiepie plays not only immediately becomes a popular Let`s Play among YouTubers, but usually drives up the Steam charts. Because it is a thorny area of law. Allows players to push the boundaries of fair use, and Nintendo can push back. Neither side is doing anything illegal. Perhaps, but fair use case law makes it clear that not all uses of a work in “commentary, reviews, news reports,” etc. are fair dealings. It is certainly possible to use a work and comment on it, but to use too much of the work and thus override the protection of the doctrine of fair use. For example, I couldn`t republish the entire first Harry Potter book with a few more comments and claim that the act of reproduction is legal fair use. Nintendo may feel that gameplay videos of “a certain length” are categorically outside the bounds of fair use and should be solely within its control. Nintendo may believe it, but I`m not so sure. As Zack Scott says, “Video games are not like movies or television. Each playthrough is a unique audiovisual experience.
I think that`s absolutely correct – the performance of a video game is different from a clip from a movie. One could argue that original and creative gameplay sequences – even augmented sequences of creative gameplay – are a form of “transformative fair dealing” under copyright law. A very recent case in the second circuit, Cariou v. Prince, could be interpreted as supporting this argument. If, in this case, the aesthetic appeal of a Let`s Play video is perceived as fundamentally different from the appeal of interactive gaming, fair dealing could in fact exist. I`m not sure the average federal court would accept this argument, but I do know that such evolutionary twists and turns are common in fair dealing law, which is notoriously unpredictable. In fact, I think part of what might motivate Nintendo`s move here is the fear that unauthorized monetization of gameplay video performance is quickly becoming the “new normal.” Nintendo may fear that if it does not enforce its copyright, the courts will eventually accept the practice of monetizing unauthorized game footage as a conventional form of fair dealing. And this type of rule could have a significant impact on the thriving North American professional gaming scene. (For comparison, see T.L. Taylor`s discussion of Blizzard`s dispute with KeSPA in his new book.) 3. TrademarkAlthough copyright is the IP language used by all parties here, it should be noted that Nintendo`s intellectual property rights are not limited to copyright: Nintendo also claims trademark rights to Mario, Toad, Princess Peach, etc.
(The Princess Peach trademark can be found at Reg. 85.497.172 if you want to search for it.) Theoretically, trademark law is narrower than copyright. The trademark is intended to protect consumers from deception about the origin of the goods and services they find on the market. And personally, I don`t think most people who watch a Let`s Play video with a Nintendo game will be confused about the origin of the video. In other words, I doubt anyone would assume that Zack Scott`s videos are the work of an employee who works for Nintendo. However, in recent years, some brand owners have become much more aggressive about their intellectual property rights. For example, some have sued filmmakers who humorously refer to their products without permission. Legal extensions of trademark legal protection, such as the Trademark Dilution Review Act, may apply to famous video game characters such as Mario and Luigi. For better or worse, many trademark owners feel legally obligated to take active action against unauthorized commercial uses of their trademarks. This means that concerns about Nintendo`s brand interests, as well as its copyright interests, could explain Nintendo`s efforts to limit emerging Let`s Play monetization business models. In summary, while Nintendo is shooting itself in the foot by grabbing revenue from YouTube Let`s Play creators, it might think that this short-term sacrifice makes sense in the long run.
Nintendo might be willing to shoot itself in the foot today instead of allowing unauthorized monetization to pull it somewhere closer to the heart in the future. Nintendo might view today`s Let`s Play monetization as the tip of an impending user-generated iceberg. It may prefer the loss of “free” advertising to the loss of exclusive control over the performance of its games and associated brand.4. Finally, I would like to make a brief appeal to you, reader. Nintendo may be making a mistake, but it certainly pursues what it deems best for its own interests. But what do you think is in the best public interest in the context of intellectual property rights in video games? What should be the scope of intellectual property rights on video games? This is not just a futile question – it is an issue being discussed in Congress right now. The day after Zack Scott complained about Nintendo`s actions on YouTube, a congressional subcommittee examined how copyright might be better suited to our new digital age. Copyright is far from being set in stone. Periodically, Congress rewrites copyright law in a very significant way. It seems that a new balance of digital copyright is emerging in the coming years. But what should that balance look like in the case of new media? Would we be better off in a world where Zack Scott could monetize Nintendo games at will in Let`s Play videos? Or is it better if Nintendo has the right to sue unauthorized Let`s Play creators for legal damages? Currently, I am trying to find my own answers to this question, in part by collecting data on the extent of contemporary creative practices around games and other new media. As part of a project funded by the National Science Foundation, I am researching the extent and nature of users` online creativity.