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Video Games, Fair Use and the Internet: the Plight of the Let’S Play

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Video Games, Fair Use and the Internet: the Plight of the Let’S Play VIDEO GAMES, FAIR USE AND THE INTERNET: THE PLIGHT OF THE LET’S PLAY Ivan O. Taylor Jr. TABLE OF CONTENTS Introduction .................................................................................................... 248 I. Background ......................................................................................... 249 A. Fighting for Rights ...................................................................... 249 B. Start of a Hobby........................................................................... 251 II. The Law as We Know It ..................................................................... 252 A. Copyright Law and its Expansion ............................................... 252 B. A Helpful Explanation ................................................................. 254 III. Fair Use and Companies ..................................................................... 257 A. Midway v. Publications International .......................................... 257 B. Sony v. Connectix ....................................................................... 257 C. Sony v. Bleem ............................................................................. 258 IV. Applying Fair Use to Let’s Plays ........................................................ 259 A. Resident Evil 5 (Co-Op) .............................................................. 260 1. Purpose and Character of Use ............................................... 260 2. Nature of Copyrighted Work ................................................. 260 3. Amount Used ......................................................................... 261 4. Effect on the Market .............................................................. 261 5. Amounting to Fair Use .......................................................... 262 B. Flashback ..................................................................................... 262 1. Purpose and Character of Use ............................................... 262 2. Nature of Copyrighted Work ................................................. 263 3. Amount Used ......................................................................... 263 4. Effect on the Market .............................................................. 264 5. Amounting to Fair Use .......................................................... 264 C. Ocarina of Time Speed Run ........................................................ 265 1. Purpose and Character of Use ............................................... 265 2. Nature of Copyrighted Work ................................................. 265 3. Amount Used ......................................................................... 266 4. Effect on the Market .............................................................. 266 B.A. 2011 Northern Illinois University, J.D. 2015 University of Illinois College of Law. I would like to thank all of the JLTP Editors for their hard work, Prof. Paul Heald for his advice, and my family for their love and support. And a special thank you to Molly Lindsey for everything that she does for JLTP. 247 248 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015 5. Amounting to Fair Use .......................................................... 266 V. Recommendations ............................................................................... 267 A. Acquiescing ................................................................................. 267 B. Licensing ..................................................................................... 269 VI. Conclusion .......................................................................................... 270 INTRODUCTION In May 2013, YouTube users and video game enthusiasts were shocked by recent developments where their communities overlapped. Nintendo of America announced that having been a YouTube partner since February 2013,1 they had registered their intellectual property using YouTube’s Content ID service.2 This allowed Nintendo to assert intellectual property claims over the content of the video.3 The consequence of this was that any monetization that would have gone to the video uploader would now be directed towards Nintendo instead.4 This was met with extreme disapproval from the gaming community, particularly from those who make “Let’s Play” videos for their YouTube channels.5 What is a “Let’s Play?” “Let’s Play” is a general term used to refer to fan generated content of a video game playthrough.6 Let’s Play is now often recorded footage uploaded to a video sharing site, like YouTube, but originally it started as screenshots uploaded to the Something Awful message forum.7 Another marker of a Let’s Play is the commentary provided by the creator; usually highlighting the best moments of a video game or lampooning its most ridiculous aspects.8 A month later in June, Nintendo backed away from their initial monetization demands.9 Let’s Play creators on YouTube were once again allowed to earn the ad revenue from their videos depicting Nintendo owned 1. Luke Plunket, Nintendo Forcing Ads on some YouTube “Let’s Play” Videos, KOTAKU (May 15, 2013, 9:45 PM), http://kotaku.com/nintendo-forcing-ads-on-some-youtube-lets-play-video-507092383. 2. Id. 3. How Content ID Works, GOOGLE, https://support.google.com/youtube/answer/2797370 (last visited May 3, 2015). 4. Id. 5. Ian Miles Cheong, Nintendo Flexing Copyright Clout on YouTube Let’s Play Channels, GAMEFRONT (May 15, 2013), http://www.gamefront.com/nintendo-flexing-copyright-clout-on-youtube-lets- play-channels/; Mike Futter, Nintendo Opts To Earn YouTube Ad Revenue on Videos Featuring Its Games, GAME INFORMER (May 16, 2013, 7:48 AM), http://www.gameinformer.com/b/news/archive/2013/05/16/ nintendo-opts-to-earn-youtube-ad-revenue-on-videos-featuring-its-games.aspx. 6. Frequently Asked Questions, LET’S PLAY ARCHIVE, http://lparchive.org/faq (last visited May 3, 2015); see also Playthrough, WIKTIONARY, http://en.wiktionary.org/wiki/playthrough (last visited May 3, 2015) (defining playthrough as recording the playing of a video game from beginning to end). 7. Id. 8. Ben “Yahtzee” Croshaw, Let’s Talk About Let’s Plays, ESCAPIST (Mar. 8, 2011, 11:00 AM), http://www.escapistmagazine.com/articles/view/columns/extra-punctuation/8703-Lets-Talk-About-Lets-Play. 9. Stephen Totilo, Nintendo’s Turn for a 180? ‘Let’s Play’ Drama Might Have Happy Ending, KOTAKU (June 24, 2013, 11:10 AM), http://kotaku.com/nintendos-lets-play-drama-might-have-a-happy- ending-513818999. No. 1] THE PLIGHT OF THE LET’S PLAY 249 video games.10 This action by Nintendo is only the most recent that illuminates the precarious position that Let’s Plays are in. Despite claims to the contrary, there is no established legality as to whether Let’s Plays fall under the fair use exception of copyright law.11 Those making these videos are stuck with the hosting site’s policies regarding copyright law and fair use.12 A shrugged shoulder is not an answer; content producers should have a more substantive explanation. This Note will focus on the applicability of the fair use doctrine to Let’s Plays. It will consider whether Let’s Plays should be covered by fair use, the likelihood of individual Let’s Plays attaining the threshold for fair use, and alternatives for Let’s Plays to avoid copyright infringement. Part I will detail the development of the video game industry and its use of the legal system to protect itself, as well as the rise of Let’s Plays as a hobby. Part II explains the expansion of copyright law and an explanation of the fair use doctrine. Part III will explain how fair use has been utilized in lawsuits involving video game companies. Part IV will apply fair use doctrine to Let’s Plays; analyzing whether or not they would or could be covered. Part V gives options that would benefit both those making Let’s Plays and video game companies. I. BACKGROUND A. Fighting for Rights From its inception, the video game industry has fought for recognition amongst other established media. Even in the early days of the PONG machines,13 copying has been a prevalent companion of the video game industry.14 Magnavox, the creator of the Odyssey video game console, was able to prove a violation of its patent for television connected games.15 Midway fended off multiple attempts of copyright and trademark infringement of its game Galaxian from various companies.16 Nintendo successfully fought off claims from Universal Studios that the video game character Donkey Kong violated the trademark of the film character King Kong.17 In another case, an American arcade owner bought second-hand Double Dragon circuit boards from the “gray market” and imported them from 10. Id. 11. 17 U.S.C. § 107 (2012). 12. Copyright Notification, DAILY MOTION, http://www.dailymotion.com/legal/copyright (last visited May 3, 2015); Copyright on YouTube, YOUTUBE, http://youtube.com/yt/copyright/index.html (last visited May 3, 2015); Copyright Policy, BLIP, http://blip.tv/copyright (last visited May 3, 2015); DMCA Notice, GAMEANYONE, http://www.gameanyone.com/?p=statement (last visited May 3, 2015); Veoh Copyright Policy, VEOH, http://www.veoh.com/corporate/copyright (last visited May 3, 2015). 13. Welcome to Pong-Story, PONG-STORY, http://www.pong-story.com/intro.htm (last visited May 3, 2015). 14. Arcade Pong, PONG-STORY, http://www.pong-story.com/arcade.htm (last visited May 3, 2015). 15. Magnavox Co. v. Chicago Dynamic Indus., 201 U.S.P.Q. 25, 28 (N.D. Ill. 1977). 16. In re Coin-Operated Audio-Visual Games and Components Thereof, No. 337-TA-87,
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