Nintendo Hijacks Ad Revenue From Fan-Created YouTube Playthroughs

mcleland writes "The BBC reports that Nintendo is now using the content ID match feature in YouTube to identify screencap videos of people playing their games. They then take over the advertising that appears with the video, and thus the ad revenue. Nintendo gets it all, and the creators of these videos (which are like extended fan-made commercials for the games) get nothing. Corporate gibberish to justify this: 'In a statement, the firm said the move was part of an "on-going push to ensure Nintendo content is shared across social media."'"

Comments

Not going to help them

[Anonymous Coward]

Now we can safely say no one will ever post a video with a Nintendo game in it again.

Re:Not going to help them

[flyneye]

Or how about a class action lawsuit? Do clothing designers take Hollywood profits because their clothes are on actors?
I think in fact not only should Nintendo not get ANY money, because they already did when they sold the movie making tool to the customer, but they should have to pay for product placement. Stick that in your court and litigate it. Remember Hollywood will be watching that one closely, and could even donate some shysters to the cause.

Re:Not going to help them

[Anonymous Coward]

Do clothing designers take Hollywood profits because their clothes are on actors?

They usually pay Hollywood to put those clothes on their actors because they know they'll make money that way.

Nintendo are apparently trying to lose money by discouraging people from uploading videos that promote their games.

Re:Not going to help them

[RyoShin]

Nintendo are apparently trying to lose money by discouraging people from uploading videos that promote their games.

While I'm sure that people liked the ad revenue that they got from their video being viewed (anyone have any idea how much they get?), my understanding of LPs is that they are almost always a labor of love, not of cash. So Nintendo taking away the ad revenue might discourage some that were using it as a business (though if your business relied entirely on one company's completed product, protected under copyright, you need to rethink your business plan), but the majority will probably continue doing what they do.

In fact, this might even increase LPs: while I don't imagine it was a huge group, there might be some worried about a lawsuit for using Nintendo's IPs. By Nintendo taking the ad revenue, this is explicit permission to use video of their properties, which may bring more people to the table who just wanted to share but were concerned over copyright.

On the face of this, I'm of two minds: on the one hand, the videos don't exist without the users who spent their time to edit and upload them, and they do act as free advertising (or the opposite, if the game turns out to be bad and the videos show that off). On the other, the user would have nothing to upload if not for Nintendo's product, and they do properly own the copyright on those games. Personally, I think it should be split (50/50 sounds good, though I'm sure both sides would prefer a larger slice,) but the power is all with Nintendo here (the big company, the copyright holder, etc.), so that's not going to happen.

Full disclosure: I've done one basic LP (Bioshock Infinite), posted to Livestream, got no ad revenue. (And it doesn't exist anymore since I had a free account.)

Re:Not going to help them

[GoodNewsJimDotCom]

Lets say you are selling a car. Then you find out thousands of people are showing themselves driving your car, and talking about how awesome it is. That is free advertising. Now swooping in and going,"Give me all the profits from those videos." is something a cartoon villain like Monty Burns would do.

Re:Not going to help them

[hawguy]

Let's say you're selling a book. People are making films of themselves reading your book, with all the words visible onscreen, and putting up ads and making money off of reading your book.

Instead of having their video yanked and suing their infringing ass into oblivion, you clear your throat and coopt the ad revenue, but let the video stay up.

Seems reasonable to me.

Which path do you think the Tolkein Estate would take?

The difference between publishing the words to a book and showing a game is that everyone buys a book to read the words, but few (?) people buy a game just to watch someone else play it. Otherwise, game makers wouldn't have to actually create games, they could just sell pre-canned videos of what game play would look like if they actually produced the game.

Re:Not going to help them

[SuperTechnoNerd]

Ford tried something similar to this several years ago. They claimed rights to any photo with a Ford product in it.

Re:Not going to help them

[Anonymous Coward]

Yes. The book analogy is stupid. This is more akin to recording yourself building a LEGO model, then uploading it and having LEGO sue you.

Re:Not going to help them

[vux984]

Nintendo would have no right to that revenue because a) the medium is different b) how a game is played by a particular user is an original work c) any additional content (audio explaining stuff about the game) is more than likely original. The only thing is that they would have to make sure to credit Nintendo but no more than that.

That's why in Canada you don't need film rights to make a movie out of a book, because

a) the medium is different
b) how the film is shot by a particular director is an original work
c) any additional content (audio soundtrack) is more than likely original.

You just have to give the author credit.

No.. wait... that's all completely wrong... even in Canada.

I don't know where you got your information, but its seems entirely wrong. I honestly don't know what a game playthrough would be ruled as in Canada, but its definitely a derivative work. Whether it falls under Fair Dealing or not I couldn't say. Its one thing to include some screenshots or animation as part of a review... but a complete play-through from start to finish really is something else entirely.

Re:Not going to help them

[retchdog]

It's a bit sui generis. It's using a substantial portion of the copyrighted work, yes, but it's transposing it to an entirely different medium.

A book review can summarize the entire plot, because doing so doesn't substitute for the experience of reading the book.

This is sort of, but not quite, like playing through the entire game. Does watching it substitute for playing it? It doesn't seem like it to me, at least in some cases.

According to my principle, it would come down to how much of the game is just a slightly interactive movie. For example, hours of tetris gameplay should be allowed since 1) it's still an infinitesimal fraction of the total possible amount of tetris gameplay, 2) the skill of the player is frankly a much more substantial portion of the work than the tetris game itself is. In contrast, a playthrough of ff7 would be less kosher and a playthrough of indigo prophecy/fahrenheit would be completely forbidden.

Re:Not going to help them

[RyoShin]

A book review can summarize the entire plot, because doing so doesn't substitute for the experience of reading the book.

But if they read the entire book to you in video, it wouldn't be covered by Fair Use, even though they're recording the video with your their equipment and using their own voice to read the words. LPs don't summarize (again, to my knowledge), so there's no comparison.

While a Let's Play might not cover 100% of the game, they cover the vast majority (so like someone reading a book over a video, and going "this part is boring so we'll skip ahead a few pages"). The fact that you aren't personally playing it doesn't change the fact that they're still using Nintendo's copyright, which is on the characters, settings, and story within the game as well as the game itself. Whether we are inputting the commands or reacting to it ourselves, or even getting enjoyment from watching the game, is a moot point. If someone were playing live in front of a sufficiently large audience, you can be sure that permission to broadcast the gameplay to the crowd was obtained at some point, in the same way that is done for movies.

I don't disagree that the experience is different between watching someone else play and playing it yourself. However, legally, that does not matter at all. Put another way, if someone streamed a theatrical release for free over the internet, but it was upside down and briefly played vuvuzelas at random intervals, we'd have a very different experience than seeing it in theaters, but it would still be copyright infringement because it is transmitting the vast portion of the movie.

(Again, IANAL, so this is all to the best of my understanding.)

Re:Not going to help them

[JMJimmy]

That argument isn't exactly right though. Following your analogy, while the book is being read they are providing commentary over top (pushing the reading itself to the background) as their interpretation of the work. It's more of a case study than a direct reading.

copyright exempt?

[TitusGroan8856]

Aren't walkthroughs a type of review? If so then they're fair use under american copyright law aren't they? Give the ad revenue back to the person that put in the effort to record and post the video.

Re:copyright exempt?

[Anonymous Coward]

No, they're not a type of review. A review wouldn't have to contain all THAT much footage from the game.

These are people that play an entire game, start to finish, and babble commentary over top of it.

There's absolutely no way anyone can realistically claim an LP isn't a 'derivative work' under copyright. As such, the game's maker -could- have the videos pulled and sue their ass into oblivion.

LPs contain far too much footage of the games in question to count as fair use. A couple of minutes in a review is fine; hours and hours of start to finish video is not.

Re:copyright exempt?

[GoodNewsJimDotCom]

I always thought a video game play through is owned by the game player. Just like a video game guide is owned by the author. Is Nintendo going to tell people they can't stream on Twitch.tv now?

Re:copyright exempt?

[yincrash]

It's a shared copyright. All the art is very much owned by Nintendo. The addition of commentary adds an additional copyright owner of the commentator, but since the footage definitely is full of Nintendo copyrighted material, they could easily be within their rights to have it removed. Basically, they've given these playthrough video makers a choice, either give Nintendo all the ad revenue, or take down the video that contains their copyrighted material.

Re:copyright exempt?

[Baloroth]

There's absolutely no way anyone can realistically claim an LP isn't a 'derivative work' under copyright. As such, the game's maker -could- have the videos pulled and sue their ass into oblivion.

LPs contain far too much footage of the games in question to count as fair use. A couple of minutes in a review is fine; hours and hours of start to finish video is not.

The amount of footage isn't really relevant here. It's patently ridiculous to argue that a video recording of someone playing a game is anything remotely close to the experience of playing that game (i.e. the LP videos are not the game itself). A video recording of a movie is that movie, but a video recording of a game is not the game. Therefore it's not at all clear that a LP video would not be fair use, since the presentation is highly transformative (since the experience of playing the game and watching someone else play it are completely 100% different). To quote Judge Pierre N. Leval (as used by the SCOTUS in their explanation of fair use):

The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

I would say that LP videos fit that understanding exactly. Standard disclaimer: IANAL.

Oh, and this is incredibly and unarguably a stupid decision on Nintendo's part. That much is certain.

Re:copyright exempt?

[idontgno]

So, MST3K was a huge lucrative ongoing copyright violation?

Actually, I guess this non-car non-pizza analogy points out an interesting difference. I'm certain that MST3K's producers made fully sure that the rights to play the movie in syndication were fully paid up, no different than your local TV station showing the "Early Saturday Afternoon Matinee" show... they just did something interesting over it (riffing, goofing off, faux shell story surrounding the movie bits).

This makes the current "Let's play" YouTube case different in a couple of ways: it turns out that the "original" content (the Nintendo-provided bits) are actually BETTER than the "overlaid" content, which is usually either painfully or awkwardly antisocial, and MST3K was able to play and pay within the system, whereas the LPers haven't.

Re:copyright exempt?

[steveha]

I'm certain that MST3K's producers made fully sure that the rights to play the movie in syndication were fully paid up

Yes, MST3K made sure they had a legal ability to do what they were doing. Cinematic Titanic continues this tradition. This is one reason why the movies they show tend to be bad: bad movies are cheap to license.

That's the brilliant part about Rifftrax. Since they are not redistributing the movie, they don't need rights. Thus they can do any movie they want, including Star Wars movies, Lord of the Rings, anything. They don't have to pay anything and they don't need to get permission first. (I don't think George Lucas would give permission to Rifftrax to mercilessly rip Episode 1...)

I'm just waiting for home Blu-Ray players to start offering an option to play an externally-downloaded audio track while playing a disc, or for AppleTV sort of products to do the same for general media files. There is no technical reason why this could not be done, and it would mean that when you pause the movie the Rifftrax pauses as well, much more convenient for the user.

Re:copyright exempt?

[cheesybagel]

There is a long history of game developers suing people who write walkthrough guides as infringing their copyright and failing.

Reminder, all ads are evil

[i kan reed]

Please adblock the hell out of everything. No one deserves money for letting somone mind control you.

Re:Reminder, all ads are evil

[dicobalt]

True, I did an experiment with my old netbook where I checked Firefox cpu usage with 4 tabs open. When ABP was on the cpu usage was around 4%. When ABP was off, CPU usage was around 40-60%.

Their Game, Their Content

[Myu]

Hardly seems objectionable that they might take what's owed them for the work that they put in to actually make the content that people are profiting from. Hey, it's a massive improvement on the music industry: No, we're not going to sue you or other people who use what you've made publically available, or even take your material down; we'll just take the advertising money you'll earn from this point on..

Re:Their Game, Their Content

[kawabago]

The videos are about people playing a game, not the game itself. That is a transformational use and thus a fair use. Nintendo is stealing from their own customers, plain and simple.

Re:Their Game, Their Content

[trims]

You (and the +5 poster a thread or two up) misunderstand "transformative" use.

The proper analogy to video gameplay has already been decided on by the courts, and it is written plays (which, also applies to screenwriting).

All three take another work, and produce an interpretation of that work. The original playwright/screenwriter/videogame author still is the owner of the base copyright being used, and the work is classified as a Derivative Work. The performer has also contributed significant copyrightable-product, but the genesis and base of the entire (new) work still rests on the original play/screenplay/game.

Also, just because something is "transformative" doesn't absolve it of the requirements to be of "limited" domain. Using the entirety of a video game (artwork included) in your new LP video is pretty much the definition of "not limited".

Nintendo's Right, but being Jerks about it...

[trims]

I've looked at a couple of those videos, and the amount of content which is copyrightable Nintendo (or whomever the on-screen game author is) is WAAAAAY beyond anything allowable for Fair Use or similar exception.

I'm certainly not in favor of Nintendo or the like suing these folks for copyright infringement. The "unique performance" issue is certainly one which can be discussed, but I liken this to plays - sure, the individual performance of a play is unique, but since you didn't write the script, you can't expect to be profiting from the performance without the author's permission.

Thus, I can't see why the authors of these videos are complaining that Nintendo gets the ad revenue. I think that's an entirely reasonable compromise - Nintendo essentially implicitly licenses the video authors to show those derivative-work videos, in return for the publicity and the ad revenue.

Nintendo, of course, could be much less tone-deaf about saying the preceding, of course.

But, in the end, those videos are derivative-works under copyright law, and they can't be shown without some sort of license.

Re:Nintendo's Right, but being Jerks about it...

[MrDoh!]

Was happy to hear Notch, contacted by Youtube to do the same thing, said no.

Re:Nintendo's Right, but being Jerks about it...

[Lanterns]

Notch has a lot more to gain from the goodwill of letting people share his games. He's a much smaller game developer than Nintendo and depends more on having the good graces of his fans. An Nintendo doesn't have much to lose. Most people won't see anything wrong Nintendo just soaks up the ad revenue from the video. It's a bit absurd that the people who make these videos think they can profit from the game.

Re:So many questions...

[mdmkolbe]

Livelihood? Really?

Yes, really. The particularly popular LP-ers make their entire living off of the videos they produce.

That might sound strange at first, but some of the best LP-ers are something of a cross between comedians and critics. Both of these are jobs that we are accustomed to seeing making a living off of their work. A good LP-er doesn't just play the game, their value is in their commentary and jokes as they play the game.

Re:Right of first sale

[i kan reed]

Fair use for LPs:

Academic: Hell no
Parody: Nope, except in the rarest of cases
Commercial nature or is for nonprofit: quite clearly commercial
The amount and substantiality of the portion used in relation to the copyrighted work as a whole: usually they play through the whole game.
The effect of the use upon the potential market for or value of the copyrighted work: Possibly detrimental

I don't see any path for fair use in there. It doesn't really meet any of the requirements.

Let them choose to go commercial free

[VinylRecords]

I don't mind if people post videos of a game that I've worked on for free. But if they are putting intrusive advertisements over my content then I want those videos taken down or the commercials removed. It's not the game play videos that are a problem. I play lots of games, I love using player videos for tutorials, in fact lots of games have a replay function directly built into them to help users share gameplay content and experiences.

But I don't think that too many artists want their work having fast food commercials and 'seen on tv' products plastered over their hard work. I don't see why 'fans' should be allowed to plaster commercials over your work. I don't see why YouTube should be allowed to plaster commercials over my work either. Go commercial free and you can do whatever you want. Tutorials, reviews, analysis, story summaries, detailed walkthroughs, tool assisted speedruns, and so on.

If the true fans want to play games and share their experiences with others then let them. That's great. No one should object to those videos. But when fans are plastering commercials over a video game it is not acceptable use in my opinion. I don't want anything I've done associated with some namebrand product. I don't want fans of mine watching someone play a game I worked on only to have some product pop up in the middle of my artwork. Remove the ads.

If you want to make a video of yourself playing a game for the social experience, for an education tutorial, or for a review, then go ahead. As long as you don't put commercials next to it. Want to put commercials next to it? Then contact the original artists and company and try to work out a deal. If they say no then respect their wishes.

Re:Let them choose to go commercial free

[Red_Chaos1]

Do the people who took the time to play through the game carefully and precisely to create such videos for people to learn from not deserve a bit of compensation for that time? You got your cut when the game was sold. Stop sniveling about the ads, it's the only means the people making these vids have of getting compensation for their time and effort. It's not the end of the world.

will they sue the AGVN / make him pay from the

[Joe_Dragon]

will they sue the AGVN / make him pay from the right to do his show with any Nintendo game?

Re:Just because they made money on your video

[mattack2]

Which would be semi-reasonable, since the only 'useful' part of the hypothetical video would be the Office episode playing.

Re:Just because they made money on your video

[Keen Anthony]

No. It's analogous to you sitting at a table and playing Monopoly, then uploading a video of that gameplay, only to have Parker Brothers hijack your ad revenue. Gameplay video differs from TV and movie uploads in that, for consumers, the latter is the goal itself –– to watch the TV program or movie. For a game consumer, gameplay video isn't the goal. Gamers want to play the game, not watch a video of another person playing the game. Yes, the gameplay video involves copyright protected content, without which one couldn't make this new content, and so there is the temptation to argue that gameplay video is a derivative work; still, gameplay video is very clearly within the spirit of Fair Use. This should be especially apparent in the case of YouTube game reviewers or game commentators. If it were not, then I suppose I would be infringing just by playing a video game in front of a bunch of people. The fact that gameplay videos are free promotions for game publishers probably shouldn't have much weight since it's anyone's right to decide how they want to promote their product, but in any case, the threshold at which Nintendo suddenly takes over is curious. How many frames of video must feature a Nintendo product before Nintendo can take the ad revenue? What happens if I'm a video game reviewer and I show clips of gameplay from both Sony and Nintendo content? Will that result in a threeway battle over ad money between Nintendo, Sony, and me?