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

[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

[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.

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?

[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?

[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.

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: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.

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: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?