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Friday, 24 May 2013

The monetarisation of Let's Plays: an exercise in copyright management

Despite his impressive pedigree, having served time as a patent examiner with the UK's Intellectual Property Office, Katfriend and Page Hargrave trainee patent attorney Sean Gilday is modest enough to describe himself as something of a novice in the fields of both patent attorneyhood and guest-blogging. However, if there is one thing that Sean is prepared to admit to being reasonably well versed in, it’s video games.  Several news articles circulating recently have motivated him to write a post that takes a look at the oftentimes hazy interface where the world of video games touches the world of intellectual property.  Sean writes:

This week, Nintendo became the last of the “big three” in the world of home game consoles (the others being Sony and Microsoft) to assert its copyright against so-called “Let’s Play” videos uploaded to YouTube.  Briefly, a Let’s Play video is a screen capture of a person playing through the entirety of a video game, usually accompanied by a commentary from that person. 
 Under the terms of service, owners of copyright material may register their content with YouTube’s database.  When a user attempts to upload a video which YouTube detects as matching that content, the owner has several options: (a) he can do nothing, (b) he can have the video taken down, or (c) he may allow the video to stay up but play adverts at the start, with any resulting revenue going to the copyright holder.  Nintendo has opted for option (c), releasing a press statement to the effect that this will allow fan-made videos to stay up, while preventing people from making an otherwise gratuitous use of Nintendo’s IP, the assumption here being that “fans” would simply make videos for the love of it, and not for any pecuniary remuneration. 
 Several points of interest arise from this: 
 First, Nintendo’s press statement accompanying this decision implies that they are being fairly public spirited by allowing the videos to stay up, and that they merely wish to stop people profiting from their IP.  Ironically, however, the result of this action for the video-sharing community is that adverts have now been forced onto many fan-made videos that didn’t previously have them.  Those videos could be considered the purest type of fan-made video, as the creators didn’t make any money from any exploitation of the IP. 
 It may be worth just considering all the places where IP does subsist is in this instance.  The code of video game being played is protected under copyright (rather clumsily as a literary work under the UK's Copyright, Designs and Patents Act (CDPA) 1988 (s.3(1)(b), CDPA).  Naturally, a video taken of a video game is a film under s.5B(1) CDPA However, in a Let’s Play the video was made by the fan making the video.   
There is an exception in s.5B(4) that copyright does not subsist in a film which is a copy taken from a previous film, but for most games (except perhaps for the genre of games called interactive movies, and some point ‘n’ click games) it seems unlikely that the developer or publisher would have made a near-identical video of a fan-made playthrough. 
Karpov v Kasparov (1985):
black to play and win
 The art assets of the game are protected as artistic works.  Many video games also have “cutscenes” which are essentially short videos, and copyright would subsist in them as films.  Similarly, music from the game would be protected as a sound recording.  Also, don’t forget any trade marks the developer might have embedded into its product.  To me, it seems more appropriate to consider most video games as, well, games -- that is, a set of rules or parameters within which one may play.  If we compare this to some other games, it would seem quite bizarre to demand that BSkyB remunerate the person who codified football (or his estate for 70 years post mortem auctoris) for making videos of the games.  Indeed, like football matches, most playthroughs of video games are unique experiences (this is especially true of sandbox games, for example) and much of the entertainment value derives from the nuance and variation within each game.  People generally enjoy watching people play games well and, if there is an audience for the virtual version of a chess game such as Karpov v Kasparov, should publishers and developers prevent people from filming it? 
 While there are people who profit off Let’s Play videos enough to make a living out of it, the number of people able to do so is estimated to be very small.  If I were to upload a video of a Let’s Play to YouTube, very few people would be likely to watch it and consequently the revenue from any adverts on it would be negligible.  To make substantial sums of money, one really needs viewers in the tens and hundreds of thousands.  The Let’s Players able to generate these quantities have usually built up a following of subscribers, which is not easily done.  With the sheer quantity of LP videos available on YouTube, viewers can take their pick.  As a result, it seems reasonable to assume that an amount of success a Let’s Player has is, to at least some extent, tied to his or her personality and to the entertainment value of the added commentary.  Some viewers will be attracted by the game content, and some will be attracted by the personality of the player.  Sorting viewers of one category from the other, however, would seem to be a tricky proposition. 
 The viewers attracted by the game content are those of particular interest to developers and publishers, and they can be further broken down into two categories: those who are more likely to buy the game as a result of watching the LP video, and those who are less likely to buy the game.  It is this commercial consideration that dictates whether copyright holders allow the videos to stay up.  If viewers are using LP videos as a try-before-you-buy sneak preview, then copyright holders would presumably be happier to let them stay up (and Let’s Players might even claim that their videos are a form of free advertising).  If they are watching the videos as a substitute to actually playing the game, and therefore as a substitute for buying it, copyright holders would likely be more keen to take them down.  Again, sorting one class of viewer from the other does not seem trivial. 
If one imagines the (admittedly unlikely) possibility that viewers purely come for the personality of the players and the quality of their commentary, and that the copyright content is completely immaterial to the viewers enjoyment, one could easily suggest the solution that the commentary be uploaded on its own without the video.  Similarly, for example, to how Rifftrax commentaries are sold to accompany movies.  Unfortunately, unlike films, one cannot simply synchronise the commentary with the start of the game and play alongside it.  Video games are an interactive medium: each experience is bespoke, and depends on the particular input of the player.  The copyright content is therefore integral to the commentary and cannot be separated.  That being the case, it would seem that the solution proposed by developers and publishers such as Nintendo may be an imperfect solution, but perhaps the only practical one if Let’s Play videos are to continue to exist at all.
Thanks, Sean. Now let's find out what our readers think!


Kharol said...

well, from the discussion it appears that the person creating the video and playing the game has a significant share in the creation of it. From that point of view - if a video game creator claims the _complete_ profit from the video and does not share with the creator (i.e. player/commenter) - this is in fact not copying, but really _stealing_. A party to a joint / combined work appropriates the complete profit without reimbursing the other party. Ouch.
Looks like a more cooperative approach may be in the interest of the game manufacturers.
I see a certain common point of this case with the "Cariou v. Prince" case (last fridays catpost), wher I also wondered whether the original copyright should have been exhausted with the sale of the first work (there: printed photograph, here: video game) or whether the joint ownership of the final creation would not only justify, but require to share the profits of the derivative work with the first rights-holder.
Thinking this to the end, towards a revenue sharing between multiple creators of copyrighted work might even lead to a legal system that reduces the risk for private persons. If at all, the question is then about the relative share to a revenue stream, if earnings are made and no more about the blocking of creative works that happen to be polluted with a piece of popular music..

Miri Frankel said...

Kharol, the relevant difference is that video games are like other forms of software - physical discs may be sold to a gamer for play in his video game console, but the underlying software and related IP rights are merely licensed, not sold. (That the game is under license is more apparent when a gamer buys a digital copy of the game that is downloaded onto his computer or console.) The gamer must thus abide by the terms of the license of use when playing the game or otherwise making use of the game content.

SG said...

I like the idea of considering such videos to be collabarative works. It feels "fair", as clearly the resulting video could not exist without the efforts of both parties. However, there are plenty of examples in case law of parties in collaborative works vying for control of the end product, and complaining that their share of the contribution has been under-respresented (and, hence, under-remunerated).

Francis Davey said...

I think Kharol must be right that, in many cases, we are looking at computer generated works (the author of which will be in most cases the player) recorded as films (also almost always owned by the player). So what appears on youtube may *contain* IP belonging to other people and hence may require their permission to be communicated to the public but it will also belong to whoever uploads.

I am assuming that youtube's terms and conditions count as a licence permitting youtube to exploit the work and therefore to pay a cut to the game company without including the more immediate author.

Of course in some cases some games contain elements that are merely films or even artistic works rather than anything else and so some of the above analysis falls away.

But, one thing we do all know from Softwara is that copyright in the computer programs (protected by software copyright) and copyright in the user interface (protected by "INFOSOC" copyright) is not infringed by the showing of them in video form for all the rather odd reasons the CJEU shared with us.

In some cases that may be all that is protectable and a "let's play" video no infringement at all.

Andy J said...

Perhaps one way of approaching the issue is to treat the game playing as a derivative work or adaptation. Provided that the player is authorised to play the game (not a given when so many games are pirated) and assuming that his contribution to the derivative work demonstrates creativity which arises from his own personality (per Infopaq), then he, the gamer, shuld be entitled to copyright (or possibly performance right?) in his work.

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