Let’s Play videos, and gaming videos more generally, are awesome. I started playing Minecraft thanks to Seananners’ very early videos about his love of what was then a quirky indie half-finished game just beginning to gather fans; I’ve played many games (and laughed a lot) thanks to the Let’s Play videos of my friends (and clients) at Yogscast; I enjoy video reviews of games from people like my friend Matt Lees at Videogamer.com; several clients of mine got their big break thanks to Let’s Play videos popularising their games. But to many people the legal status of gaming videos is unclear and getting pretty controversial, too.
Some early gaming videos were taken down; Nintendo said they wouldn’t permit them at all (though they may have changed their mind later); and most recently and infamously, some licensing companies used the YouTube system to issue many IP infringement notices to gaming videos (more on that later). To try to clarify what’s actually happening here, I thought I’d write this legal guide.
Just so we’re clear before we start though: I’m not passing a value judgment on whether this is a good system or a bad system. I’m going to tell you what the law and reality actually is, so you can decide for yourselves.
(One more thing: I’d like to give a big shout out to Gavin Harrison, a talented UK-based composer and sound designer who gave me some great insight into how the system works for content creators like him and what really happened with Tunecore/Indmusic.)
What are Let’s Play and other gaming videos, exactly?
They’re videos which to a greater or lesser degree contain footage of someone playing or interacting with a game, usually for the purpose of communicating something about that game (eg how awesome it is, or to review it, or just to use it for humor). You can watch a few examples in the links at the start of the post. This can range from someone actually screening footage of them actually playing the game and commenting on it (the “Let’s Play” variety) through to using in-game assets to make episodic or tv content (some of my favourites is are the comedy series created using Garry’s Mod, such as the Gmod Idiot Box, or the Halo-based series Red vs Blue which became so popular it has its own DVDs and merchandise).
The basic point is this: gaming videos involve using pre-existing game IP to create new, entertaining, increasingly popular and lucrative video content.
How does IP law interact with gaming videos?
Games are literally bundles of IP rights: the copyright in audio and graphics, the trademark protection in a game’s name or brand and so forth. For more info, read my beginner’s Prezi guide to IP in games, then my guides to copyright in games and trademarks in games.
All this means that, technically, when a gaming video includes any part of an existing game in it – video, audio, graphics, gameplay – technically it is using IP that belongs to the developer or someone else.
What about music and other non-games content in gaming videos?
Same thing: technically, if you include existing assets in your video which someone created previously, then technically you are using IP that belongs to someone else. This applies to non-games music, video and artwork in gaming videos. If you don’t have the rights to that non-games content for your gaming video, then you might encounter problems.
This is what happened recently with a whole wave of copyright notices being sent to Let’s Players and other gaming video makers via YouTube. Polygon has an excellent summary: from what we know at the time of this post, two music licensing bodies decided to become more active in making sure that they were getting payments from YouTube videos which used content that these bodies had been given licensing rights in from the original creators. Like, for example, a musician in the UK authorising them to license her music out to YouTubers in return for a payment (i.e. a royalty). We don’t know exactly what happened next yet, but it seems like those two companies used the YouTube takedown system (described below) against a number of videos. Possibly this somehow affected videos where there was no content licensing at all, we’re not sure yet. The point is: videos were taken down where they contained content that allegedly had been licensed to someone else. Thus demonstrating my point that if you’re not sure you have all the relevant rights for third party content in your gaming videos, you should be prepared for the (hopefully faint) risk of legal trouble at some point.
So will gaming videos always infringe IP law?
No, not necessarily. Generally speaking, copyright and trademarks (the two branches of IP law that appear most often in gaming videos) are not monopoly rights: just because you own them doesn’t necessarily give you the right to control absolutely all use of them by other people. Creating Mario doesn’t give you the rights over all Italian plumbers (or even mustachioed men) in games. It comes down to whether the proper legal tests have been met.
First, for copyright you need normally to show that there has been copying of a “substantial part” of the copyright work. This does NOT mean copyright infringement = copying >x% of the original work. It’s not only a quantitative test of how much is copied, it’s also a qualitative test. A judge will look at whether in the round it looks like what was copied is sufficiently distinctive and connected to the original work. For example, there have been music cases holding that copying a single guitar riff or some opening notes can potentially constitute copyright infringement even though they were a tiny percentage of the overall work. What mattered is that they were distinctive enough.
I imagine therefore that many gaming videos would pass this “substantial part” test – for example, would a judge decide that a few seconds of footage from a Mario game is sufficiently distinctive to be protectable by copyright? Probably yes, but it’s not an absolutely legal given that he or she would. So that’s issue number 1: it’s not always a given that your footage usage constitutes enough copying to be copyright infringement (though you can’t necessarily rely on that either).
Second, for trade mark infringement you need to show (among other things) a risk of confusion in the public- ordinary people need to think the game name or brand you’re talking about is YOUR game. That’s Issue number 2: simply using someone else’s name, brand or trade mark in a gaming video doesn’t necessarily constitute IP infringement.
Third, even if the gaming video does infringe someone’s copyright or trademarks, there may be defenses to copyright or trademark infringements available:
Fair use: in the US ONLY there is a fairly wide legal principle called fair use, which effectively can reduce or remove altogether the IP owner’s ability to sue for IP infringement as long as you meet certain criteria. Some key factors include whether you are engaged in “transformative use” (ie to take existing content and make it into something new), whether you are exercising your right to freedom of expression in doing so and whether you are making money from the video.
Fair dealing and other defences: in most other countries outside the US, there is a mixed bag of legal defences that vary from country to country but there is NO wide defence like fair use. In the UK for example (and generally across the EU) there is no fair use defence but there is a group of defences aiding journalists, educators, researchers and even politicians from being used for IP infringement if they include pre existing IP in a gaming videos. Some countries have other defenses, including for example if the existing IP is being used for parody purposes or simply for non-commercial (ie not for money) purposes. So that’s issue number 4.
So, this is why I answered the question with “not necessarily” – simply using someone’s content in a gaming video isn’t automatically illegal. That’s actually not really different to using someone else’s content in say films or TV – you might be able to get away without permission based on your legal defences, but why take a chance? Especially if there’s a risk that your hard work could face a legal claim (whether spurious or not). This is why the other creative industries have developed regular and fairly sophisticated forms of content licensing.
Should you get non-gaming content licensed?
Yes, if possible – that’s the legal answer and usually the practical answer too (no one wants to face legal claims if they can help it). You go to the person who owns the content and you make sure that they will give you permission to use the content in your video.
But there’s a problem here for gaming videos: it may well not be practical to ask the actual games developer/publisher for permission because it would take so long. In the early days, which Let’s Player would really be able to get permission from a big games publisher to use footage from its latest game in his/her video? Or get permission from a big music band to use one of their popular songs as background music?
This is where things start getting a bit complicated. Not so much for games: many games developers and publishers have realised that gaming videos are excellent marketing channels and therefore they have either expressly given videomakers a licence to use their games in the videos (more on that in a minute) or they have implicitly given permission by simply letting all these videos exist and proliferate online. So if the developer/publisher says yes, you’re ok. If they haven’t said no to many other videos, you might be ok (for as long as they let that continue).
But what about non-games content? Unfortunately this is where the legal and business position could be quite harsh to gaming videomakers: since using someone’s content without permission runs the significant danger (but not absolute certainty) of infringing the owner’s IP rights, you shouldn’t use that content without permission, BUT usually non-games content makers won’t give you a free licence. The reason for this is, like I said, the other creative industries use licensing systems as part of which they expect to get paid.
So to pull all that together: if you’re going to use a game in your gaming video, check to make sure the developer/publisher has given the world permission to make gaming videos about the game. If you want to use non-gaming content in your video, you better either license it or, more likely, you’ll probably just make the video anyway but if that happens then you should have the full understanding that it could face difficulties.
I’m a games or content creator and I want to license my stuff for gaming videos. What do I do?
Put some easy, uncomplicated wording on your website or otherwise attach it to your content. It doesn’t have to be big and legal. Here’s some very informal examples I helped Garry’s Mod and (awesome zombie survival game) Project Zomboid design.
If you’re a non-games content creator, like a musician or artist, then you can do the same thing on your site. If you have licensed your content to a licensing body, then MAKE SURE YOU HAVE READ THEIR TERMS AND CONDITIONS PROPERLY. The Tunecore/Indmusic example I gave above happened, as far as we can tell, in part because creators who had given permission for their content to appear in a gaming video had also given exclusive licensing rights to a licensing body which, as licensing bodies do, then tried to make sure they were getting paid for all exploitation of that content. If you’re not happy with a third party trying to track down everyone who used your content in the world and get them to pay up, then don’t use that third party (or at least agree the scope of their instructions).
I’m a Let’s Player or gaming video maker. How do I check if I have the rights I need?
For the game itself, best thing is to check with the developer – initially by checking their T&Cs/website or otherwise send them an email It’s not just indie developers – big games studios have policies too (e.g. check out the Creative Assembly’s policy for Total War footage, courtesy of Will Overgard). Also, online resources are just beginning to spring up about this too. Try the Let’s Play Wiki (I was going to make a wiki myself after writing this post, but I’m glad someone else did it already.
Unfortunately for non-games content it’s not nearly so easy. For indie creators, you might be able to get permission directly (possibly again from their website). From more established creators like TV studios or big music bands, you can try contacting them directly but often they may have licensed their rights to someone else, like to music collection bodies (such as PRS for Music in the UK). Then it starts getting pretty complicated – so much so that I’m afraid for many video creators they just wouldn’t bother to go through the licensing process. In my view, this is the fault of the old style licensing bodies that they don’t have easier online licensing processes (a subject the creative industries have complained about for ages now; even in games, I once had to spent SIX MONTHS negotiating rights to a collection of songs in the UK for one of the largest games publishers in the world for a flagship new product, in return for the handsomely tiny royalty of £1,000). There are some fledgling legal efforts to simplify this, but they are just that – fledgling.
Unfortunately, when it comes to non-games content, this kind of bureaucracy is what makes it harder for gaming video creators to get license rights even if they know they need them in the first place. So, what happens if a gaming video DOES face legal difficulties?
How DMCA/takedown/cease and desist notices work
Here’s a story about DMCA, since it’s so maligned and misunderstood.
Back in the late 1990s and early 2000s, the Internet was facing a real problem from potential or actual lawsuits between content publishers, online platforms and ISPs. These different entities in the new Internet ecosystem were duking it out to establish who would be liable for illegal stuff that appeared on the Internet – everything from obnoxious/inappropriate content on one side through to libellous or racist content and on to IP infringing material on the far side. In particular, since the platforms (like search engines or content repositories like YouTube) had all the audience and increasing amounts of the money, the content publishers (like Hollywood studios) went after them (and frankly they still do).
So, around the end of the millennium the World Intellectual Property Organisation and its signatory countries implemented some treaties about how the world would approach these issues. That resulted in similar legislation around the world, of which the two best known ones are the Digital Millennium Copyright Act in the USA and the E-Commerce Directive in the European Union.
Very broadly and simply, this is what they say about content platforms like YouTube or Twitch: if you are found to be hosting illegal (including IP infringing) content, and you didn’t know about it, but you take the content down expeditiously after being notified of it, then you will be immune from liability. The person complaining about the content can’t sue you. YouTube and Twitch and every other content platform must hold to this religiously to avoid being swept away in a deluge of litigation – which is exactly what WIPO wanted to avoid in the first place.
You can see how this applies to gaming videos. If a rights owner contacts a content platform hosting a gaming video and complains that it contains unlicensed IP infringing material, then to save its own skin the content platform has to do something about it. But on the other hand, they don’t just want to kow tow to a rights owner just because they say so and thereby potentially to alienate their customer base.
So, we have the notice/counter-notice system. This is how it works, using a simplification of the YouTube system as an example:
(1) The rights owner fills out a takedown form, explaining why they feel their IP is being infringed, and they confirm under threat of liability themselves that the contents of the form are true.
(2) YouTube then takes the content down temporarily and tells the uploader what has happened.
(3) The uploader then has the opportunity to file a counter-notice explaining why the content is NOT illegal/IP infringing.
(4) The rights owner then has to either remove their takedown notice or they have to escalate to court proceedings against the uploader.
(5) If they do neither, then the video is restored.
It’s an elegant compromise to an invidious situation. The platform has no way of knowing the rights and wrongs of any particular situation and it will virtually never be worth its time and costs to find it out. So it takes the video down temporarily and lets the parties duke it out, but in reality that means the rights owner had better be prepared to escalate (which it seldom is), otherwise all they achieve is a temporary takedown.
But for all that, and with the benefit of a deal of experience actually working with the realities of it, I do think the DMCA-type system strikes a workable balance between the competing interests of content makers, rights owners, the platform and the public. Not perfect, and certainly capable of improvement, but workable. I appreciate fully that not everyone agrees with this though (and feel free to explain why in the comments!)
What do you do if you get a takedown notice?
(1) Review the notification from the platform carefully- is there anything missing?
(2) Review the content carefully against the notification – is the complainant right that they own the content and that it was used in the video?
(3) Take legal advice on your options available to you under the law.
(4) If you want to fight the notice, then file a counter notice. CRITICAL: you need to set out full reasons why you oppose the notice. You need to work on the basis that it will be read by both the platform and the complainant – it’s your best chance of getting the content released, so treat it as such.
(5) Wait to see if the video is reinstated or if the rights owner really wants to escalate to legal action (it’s unlikely but still a risk).
(6) Content either reinstated, or if the matter escalates you certainly will need legal advice (and maybe also to kick up as much of a PR stink as you can).
What about Content ID issues? What about claims where my video stays up but someone else takes the ad revenue?
Good point (thanks to Moo Yu for reminding me this needed to be added to this guide). The recently Tunecore incident was marked by something many people had not seen before: the gaming video staying published, but its advertising revenue (or a proportion of it, I’m not sure myself) being diverted to a third party which claimed it held IP rights in part of the video. The argument being that in this way the advertising pays the royalty which should have been paid in the first place.
This is called the Content ID system on YouTube. YouTube has a database of content which is added to by content owners. When YouTube detects that copyright content belonging to someone else (according to the database) is part of your video, it will notify that content owner. The content owner then has some options, which includes diverting advertising revenue away from you.
There is an appeal process you can go down. Ultimately, you can go through the appeal process and the content owner will have to decide whether to reverse their earlier action, or go down the DMCA route which I described above. If a videomaker truly believes that there is no third party content in their video, then they can go through the full Content ID/DMCA process and be vindicated. But it takes time – that’s the rub.
Like with the DMCA route, this can be seen as an elegant solution to an IP problem (the video stays up but the royalty can still be paid, which helps if you couldn’t get the licence rights in the first place or didn’t know you were meant to), but there is potential for abuse of the system or simply for videomakers not to understand their rights. The key to it all is just that though – understanding that there is now a system underpinning third party content usage in YouTube and in other platforms.
Summing up thoughts – is this a good system or a bad system?
I think there’s something in the argument that the first age of gaming videos is coming to an end and that we’re now seeing a new age begin. The time of being able to put up an amateur gaming video about anything, anywhere and put anything in it is rapidly becoming harder in a world where user generated content period is becoming more popular, more professional and monetisation is being sought more aggressively all the time. This is what things are like already in the film/tv/music industries and now, with incidents like Tunecore/Indmusic, it’s coming to the games industry. I’m not going to get into a debate right now about whether that’s a good thing or a bad thing, or whether the solution should be less law/better law/industry solutions. One could even go further and start discussing radical theories about whether online content should be licensable in exchange for a royalty AT ALL. That’ll be a topic for another day. But in the meantime I hope that this guide to what the law and reality actually is right now is helpful
The TL;DR summary of the law and gaming videos:
- Let’s Play and gaming videos are awesome and should be protected and helped to flourish.
- IP law gives you some defences if you use third party content without permission but it can be dicey. So in reality…
- Game footage in a gaming video will require the consent of the game developer/publisher. Many are friendly.
- Non-game content in a gaming video, e.g. music/art, will DEFINITELY require a licence. Don’t get one at your own risk.
- Takedown notices are actually the only way in which the system can work – they’re the best of a bad situation.
- Understand how takedown notices work, in particular that you can file a counter-notice to bring the heat back to the complainant.
- We’re entering an uncertain time for gaming videos: they will continue to become more and more popular but making them will become more regulated
Should I write more?
I’m conscious that I’m trying to tackle in one blog post an increasingly complicated area. If there’s issues I haven’t dealt with and you think you’d like to read about, let me know in the comments!