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VIDEO GAMES, FAIR USE AND THE : 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. v. Connectix ...... 257 C. Sony v. Bleem ...... 258 IV. Applying Fair Use to Let’s Plays ...... 259 A. 5 (Co-Op) ...... 260 1. Purpose and Character of Use ...... 260 2. Nature of Copyrighted ...... 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 , 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, & 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 game enthusiasts were shocked by recent developments where their communities overlapped. of America announced that having been a YouTube partner since February 2013,1 they had registered their intellectual property using YouTube’s Content ID .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 be directed towards Nintendo instead.4 This was met with extreme disapproval from the gaming community, particularly from those who make “Let’s Play” 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 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 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, (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, (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 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 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 , was able to prove a violation of its patent for 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, , http://blip.tv/copyright (last visited May 3, 2015); DMCA Notice, GAMEANYONE, http://www.gameanyone.com/?p=statement (last visited May 3, 2015); 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, USITC Pub. 1160 (June 25, 1981). 17. Universal City Studios v. Nintendo Co., 746 F.2d 112, 120 (2d Cir. 1984). 250 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015

Japan.18 , the original creator of the circuit board, sued claiming a violation of copyright law due to the arcade owner’s failure to acquire a license prior to using the circuit boards in coin-operated machines.19 The court ruled that the public performance of the game was copyright infringement and that the first sale doctrine, used by the arcade owner as a defense of his action, only affected the right of , not performance.20 Despite these successes, not all court cases resolved themselves in the video game company’s favor. A telling example is the suit between Galoob Toys and Nintendo.21 Galoob Toys created a device called the Game Genie, which allowed players to make minor changes to their games, like increasing the lives of the character.22 Nintendo claimed copyright infringement due to the changes the Game Genie makes to the video game.23 The Court of Appeals for the Ninth Circuit ruled that the changes were not “fixed” and thus no derivative work was created.24 The Court further stated that even if the use of the Game Genie was derivative, it would fall under fair use.25 Its use by families as a nonprofit activity presumptively makes it fair26 and Nintendo failed to show any harm the original work would suffer in the market.27 This fight over copyright is one Nintendo knows very well. In the late 1980’s, Nintendo took on video rental company Blockbuster to protect its copyright.28 Specifically, Nintendo brought suit to prevent Blockbuster from making copies of instructional manuals for the games it rented.29 Nintendo sought not only an injunction against Blockbuster but also wanted to recover damages.30 Blockbuster agreed to no longer make copies of instruction booklets, though they remarked how Nintendo was actually upset at its failure to garner congressional support to prevent video game rentals.31 The Computer Software Rental Amendments Act32 prohibits the rental of computer software, but specifically exempts video games from this prohibition.33 When the Act was being discussed in the Senate and House of Representatives, the rental store lobby, Video Software

18. Red Baron–Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 277 (4th Cir. 1989). While the term “gray market” seems to indicate a large , in this case it is just buying used circuit boards instead of buying new boards directly from Taito. 19. Id. 20. Id. at 279–81. 21. Lewis Galoob Toys, Inc. v. Nintendo of Am., 964 F.2d 965 (9th Cir. 1992). 22. Id. at 967. 23. Id. at 968. 24. Id. at 969. 25. Id. 26. Id. at 970. 27. Id. at 971. 28. Ellen Forman, Blockbuster Sued in Copyright Case, SUN SENTINEL (Aug. 5, 1989), http://articles.sun-sentinel.com/1989-08-05/business/8902240354_1_nintendo-blockbuster-copyright. 29. Id. 30. Ellen Forman, Nintendo Steps up Blockbuster Battle, SUN SENTINEL (Aug. 10, 1989), http://articles.sun-sentinel.com/1989-08-10/business/8902250177_1_nintendo-blockbuster-manuals. 31. Ellen Forman, Nintendo Zaps Blockbuster Reproduction of Game Instructions Spurs Copyright Lawsuit, SUN SENTINEL (Aug. 13, 1989), http://articles.sun-sentinel.com/1989-08-13/business/ 8902250572_1_nintendo-blockbuster-video-games. 32. 17 U.S.C. §§ 109(b)–(d) (2012). 33. 17 U.S.C. § 109(b)(1)(B)(ii) (2012). No. 1] THE PLIGHT OF THE LET’S PLAY 251

Dealers’ Association, was able to successfully remove video games from the exemption in the bill and final Act.34 This meant that video games could be freely rented, lessening the overall number of individual games that would be sold. While Nintendo succeeded in getting the injunction, Blockbuster was prepared to either make its own informational cards or purchase alternate instruction booklets for the games from an upcoming Video Software Dealers’ Association Convention.35 These battles, from both inside and out of the video game industry demonstrate the persistence of the legally precarious nature that video games continue to exhibit. The silver lining is the recognition that video games fall into the audiovisual category36 of a copyrightable work.37

B. Start of a Hobby

Let’s Plays have had a less tumultuous development. While some debate exists, it is generally accepted that Let’s Plays started on the Something Awful online forums.38 The first Let’s Plays were screenshots of games with accompanying text by the uploader.39 Video Let’s Plays are most often attributed to a Something Awful forum user going by the name “Slowbeef” who uploaded a video of the game The Immortal.40 Slowbeef gives to another user, “Vlaphor,” for starting this style of Let’s Play with the playthrough of I Have No Mouth and I Must Scream.41 The popularity of Let’s Play spilled to other members of the forum community.42 Let’s Plays soon spread to other forum communities43 and video sharing sites, like YouTube.44 Let’s Plays are distinguished from other gameplay videos due to the commentary provided by the person playing the video game.45 It’s best described as being similar to going to a friend’s house and watching them play through a video game,46 combined with watching a DVD with director’s commentary of a movie made by a person who did not actually make the

34. Forman, supra note 31. 35. Id. 36. 17 U.S.C. § 102(a)(6) (2012). 37. Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 857 (2d Cir. 1982). 38. Frequently Asked Questions, supra note 6; Slowbeef, Did I Start Let’s Plays?, SLOWBLR (Jan. 30, 2013), http://slowbeef.tumblr.com/post/41879526522/did-i-start-lets-play. Slowbeef’s real name is Michael Sawyer. 39. Frequently Asked Questions, supra note 6. 40. Slowbeef, supra note 38; History, WIKIA, http://infoonletsplays.wikia.com/wiki/History (last visited May 3, 2015). 41. Slowbeef, supra note 38. 42. Id.; History, supra note 40. 43. See generally What is the Nuzlocke Challenge?, NUZLOCKE, http://nuzlocke.com/challenge.php (last visited May 3, 2015) (describing Nuzlocke, a play style for the game series Pokémon, and how one can record their run of a game through videos and screenshots). 44. See generally GAME ANYONE?: VIDEO WALKTHROUGHS, http://www.gameanyone.com (last visited May 3, 2015) (describing a that is dedicated to hosting videos of gameplay footage which includes Let’s Plays and walkthroughs, which generally don’t have commentary). 45. Croshaw, supra note 8. 46. The History of the Let’s Play Archive, LET’S PLAY ARCHIVE, http://lparchive.org/history (last visited May 3, 2015). 252 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015 movie.47 The purpose of a Let’s Play is to have a new experience with a video game even if the observer does not have enough time to fully play through the game.48 While not a substitute for playing the game, Let’s Plays help answer questions the video game player might have, or demonstrate new ways to play the game.49 Commentary styles vary by individuals, but the focus is put on highlighting the video game itself, for the audience.50

II. THE LAW AS WE KNOW IT

A. Copyright Law and its Expansion As a common law doctrine, the fair use of copyrighted works developed first in Great Britain as the Statute of Anne51 before being supplanted in the United States as part of the Constitution.52 One of the earliest depictions of this doctrine in the U.S. common law was articulated by Justice Story.53 The case of Folsom v. Marsh revolved around the supposed piracy of a twelve volume biography of George Washington’s life, which included letters written to and from the famous General and President.54 The infringing material was a two volume biography, which recounted Washington’s life with some of his letters interspersed throughout.55 One of the arguments of the Defendants was that they had a “right to abridge and select” materials for their own new work.56 Justice Story stated that in deciding questions of this sort, “we must often . . . look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”57 This notion of fair use was eventually codified in the Copyright Act of 1976.58 Copyright law would see more enhancements with the improvement of technology. Much like the passing of the Computer Software Rental Amendments Act,59 the Digital Millennium Copyright Act (DMCA) of 199860 was Congress’s attempt to update copyright law. Part of this update was the Online Copyright Infringement Liability Limitation Act (OCILLA).61 This Act was a compromise between the copyright and online service provider

47. Slowbeef, Immortal Level 1 (with commentary), YOUTUBE (Apr. 26, 2011), https://www.youtube.com/watch?v=KA1kIBwGhrk. 48. Croshaw, supra note 8. 49. Id. 50. Id. 51. Statute of Anne, 1710, 8 Ann., c. 19 (Gr. Brit.). 52. U.S. CONST. art. I, § 8, cl. 8. 53. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841). 54. Id. at 345. 55. Id. 56. Id. at 347. 57. Id. at 348. 58. 17 U.S.C. § 107 (2012). 59. 17 U.S.C. §§ 109(b)–(d) (2012). 60. 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001 (2012). 61. 17 U.S.C. § 512 (2012). No. 1] THE PLIGHT OF THE LET’S PLAY 253 industries.62 It allowed copyright owners the assurance of a quick removal of their improperly displayed work from the Internet while allowing online service providers to have a safe harbor from being liable for the individual acts of users.63 For the online service providers to have this safe harbor, they must expeditiously remove any infringing materials once the copyright owner brings it to their attention, or face secondary liability for their inaction.64 This system seemed to work, except when it came to user generated content like Let’s Plays. Falsely made claims of copyright infringement caused the removal of videos, which were later returned due to successful counterclaims by the video creators.65 Even with new processes meant to assist in the removal of infringing works, like YouTube’s Content ID,66 issues in the removal process are still possible.67 False claims can still be generated by individuals signing up for the service and fraudulently claiming of videos.68 There is some solace in the fact that users can dispute their videos being flagged by Content ID69 and make counter claims from their videos being removed,70 but it need not be necessary.71 Even for the online service providers, OCILLA has not been a perfect fit. YouTube has had to defend itself against multiple parties in a combined lawsuit.72 Several groups, with Viacom as the main named plaintiff, brought suit against YouTube claiming that it had knowledge73 of the thousands of infringing videos on its website. This suit is an attempt to remove the online service provider’s safe harbor protections.74 Although YouTube won summary judgment dismissing the suit in the district court,75 the United States Court of Appeals for the Second Circuit vacated that order and remanded the case for further proceedings.76 The Second Circuit stated that a reasonable jury may find actual knowledge of the infringing content for at least some of the videos hosted by the website.77 Another video hosting site, Veoh, faced similar adversity. It successfully

62. S. REP. NO. 105–109 (1998). 63. H.R. REP. NO. 105–155 (1998). 64. 17 U.S.C. §§ 512(a), (j) (2012). 65. WIKIA, supra note 40. 66. GOOGLE, supra note 3. The system allows companies and individuals to register with YouTube what works they have the copyright for, then YouTube can scan videos on their site to see if they infringe upon the work claimed to be owned by the registered individual. 67. Mike Masnick, YouTube Fails In Explaining Flood Of Takedowns For Let’s Play Videos, TECH DIRT (Dec. 12, 2013, 9:58 AM), http://www.techdirt.com/articles/20131211/17365325537/. 68. David Kravets, Rogues Falsely Claim Copyright on YouTube Videos to Hijack Ad Dollars, WIRED (Nov. 21, 2011, 6:30 AM), http://www.wired.com/threatlevel/2011/11/youtube-filter-profiting/all/. 69. Dispute a Content ID Claim, GOOGLE, http://youtube.com/yt/copyright/content-id-disputes.html (last visited May 3, 2015). 70. Counter Notification , GOOGLE, http://youtube.com/yt/copyright/counter-notification.html (last visited May 3, 2015). 71. Kravets, supra note 68. 72. Viacom, Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). 73. Id. at 26. 74. See 17 U.S.C. § 512(c)(1)(A) (2012) (outlining the safe harbor provisions an online service provider may have). 75. Viacom Int’l, Inc. v. YouTube, Inc., 718 F. Supp.2d 514, 529 (S.D.N.Y. 2010). 76. Viacom, 676 F.3d at 41–42. 77. Id. 254 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015 negated the claims of an adult producer by acting within the bounds of the OCILLA safe harbor provision.78 However, the legal battle with Universal Music did not work out as well for Veoh. Despite again successfully defeating the claims of the opposition and being ruled to be within the safe harbor of OCILLA,79 the lawsuit took its toll on Veoh, which had to file for Chapter 7 Bankruptcy.80 This still didn’t stop Universal Music, as the appeal had only been resolved by the Ninth Circuit in 2013.81 This is the realm in which Let’s Plays have to exist. A realm in which video game companies have learned to doggedly fight for legal recognition and where video hosting sites are still being sued, sometimes into fiscal oblivion, despite the deal of a safe harbor.82 Finding a legal justification for Let’s Plays in this world is a difficult challenge.

B. A Helpful Explanation When confronted with an opportunity to give lower courts guidance in how they should examine fair use defenses in copyright infringement cases, the United States Supreme Court actually gave a unanimous explanation of section 107.83 As an affirmative defense,84 the codified fair use exception to copyright infringement reflects the ideas exemplified by Justice Story.85 Congress wrote the fair use exception into the Copyright Act of 1976, with minor updates to include 17 U.S.C. § 106A in 1990, as such: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation

78. IO Group, Inc. v. Veoh Networks, Inc., 586 F. Supp.2d 1132 (N.D. Cal. 2008). 79. UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp.2d 1099 (C.D. Cal. 2009). 80. Eliot Van Buskirk, Veoh Files For Bankruptcy After Fending Off Infringement Charges, WIRED (Feb. 12, 2010 3:49 PM), http://www.wired.com/business/2010/02/veoh-files-for-bankruptcy-after-fending- off-infringement-charges/. 81. UMG Recordings, Inc. v. Shelter Capital Partners, L.L.C., 718 F.3d 1006 (9th Cir. 2013). Veoh only still exists as a video hosting site because it was bought by another company. Ty McMahan, Veoh Lives On — Behind the Acquisition of the Video Site, WALL ST. J. (April 8, 2010 9:06 AM), http://blogs.wsj.com/digits/2010/04/08/veoh-lives-on-behind-the-acquisition-of-the-video-site/. 82. UMG, 718 F.3d 1006 (2013). This case shows a situation where a Let’s Play, Veoh, is sued completely into bankruptcy despite safe harbor provisions. 83. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). 84. Id. at 590. 85. Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841). No. 1] THE PLIGHT OF THE LET’S PLAY 255

to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.86 In the case of Campbell v. Acuff-Rose Music, Inc., the Supreme Court identified and explained the meaning of each part of the exception by first reiterating Congress’s intent of continuing the judicial doctrine of fair use.87 The Court further stated a preference for case-by-case analysis, as opposed to bright-line rules.88 All four factors were to be considered in conjunction with the others and weighed according to the circumstances, with the listed purposes merely showing examples of past instances in which fair use has been found.89 In the first factor, the Supreme Court said that courts should look towards “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”90 While the examples listed in the preamble of section 107 may be a helpful guide to judges,91 the purpose is to see if the new work merely supplants the original or “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”92 Ultimately the question is to what extent is the work transformative.93 Though not absolutely necessary to prove transformative use, “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works[;] . . . [they] lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”94 In Campbell, the Supreme Court deemed that parody has a claim as transformative work, like comments and criticisms, for “provid[ing] social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”95 The Court quickly notes that this does not give free reign to those making parodies.96 As for the commercial nature of the work in Campbell, the Court stated that there is no presumption for or against fair use depending upon whether the new work was not for-profit educational or commercial.97 The fact that a work was commercial and not nonprofit is only a factor that weighs against finding fair use to be weighed along with the others.98

86. 17 U.S.C. § 107 (2012). 87. Campbell, 510 U.S. at 577 (1994). 88. Id. 89. Id. at 578. 90. 17 U.S.C. § 107(1) (2012). 91. Campbell, 510 U.S. at 578 (1994). 92. Id. at 579. 93. Id. 94. Id. 95. Id. 96. Id. at 581. 97. Id. at 583–84. 98. Id. at 584. 256 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015

For the second factor, the nature of the copyrighted work gets less than an elaborate explanation.99 The Supreme Court stated that “[t]his factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.”100 The Supreme Court agreed with the findings of the District and Circuit Courts that the original song was a creative work,101 as such it is in the core of copyright protections as opposed to the fringes for strictly informational works.102 However, this fact does not help much for a parody case like Campbell.103 The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” was reasonable in relation to the purpose of copying.104 This relates back to the first factor as “the extent of permissible copying varies with the purpose and character of the use.”105 Courts are to look at the quantity of the original material used as well as its quality and importance.106 A substantial portion of the original work being copied verbatim may indicate a lack of transformative purpose in the first factor or cause greater market harm as indicative of the fourth factor.107 When applied to parody, the Supreme Court indicated that the need to “conjure up” the original would require a greater copying, even of the original’s heart.108 It was important how the defendant in Campbell added its own originality to its parody song after copying the opening bass riff.109 The final factor is “the effect of the use upon the potential market for or value of the copyrighted work.”110 With great clarity, the Supreme Court said one must “consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market’ for the original.”111 The inquiry should also include a look at harms to the market of derivative works as well as for the original.112 When works are transformative, the possibility of market substitution of the original becomes less certain, limiting any quick inference of market harm.113 The Supreme Court continued by stating that like a scathing review, a parody can destroy the market for the original, but does not produce harm under the Copyright Act; the focus is the difference between

99. Id. at 586. 100. Id. 101. Id. 102. Id. (quoting Feist Publ’ns, Inc. v. Rural Tel, Serv. Co., 499 U.S. 340, 348–51 (1991)). 103. Campbell, 510 U.S. at 586. 104. 17 U.S.C. § 107(3) (2012). 105. Id. at 586. 106. Id. at 587. 107. Id. 108. Id. at 588. 109. Id. at 589. 110. 17 U.S.C. § 107(4) (2012). 111. Campbell, 510 U.S. at 590. 112. Id. 113. Id. at 591. No. 1] THE PLIGHT OF THE LET’S PLAY 257 criticism suppressing demand and infringement usurping it.114 As for the derivative market, where the original creator would develop it themselves or license others to do so, if none exists, like for criticism and parody, that adds to the new work being of fair use.115 Campbell laid an articulable foundation for Let’s Plays to follow when arguing their actions as being covered by fair use.

III. FAIR USE AND COMPANIES

A. Midway v. Publications International Cases involving video game companies and the affirmative defense of fair use of copyright infringement are limited. Enough exist, however, to create a better understanding of how the Supreme Court’s explanation of fair use is utilized in respect to video games. The first case was decided only a few months after Campbell.116 In Midway Mfg. Co. v. Publications Intern., Ltd., Midway,117 as plaintiff, was suing the defendant for copyright and trademark infringement for its unauthorized player’s guide for the video game Mortal Kombat.118 Defendant claimed the defense of fair use in its summary judgment motion, relying on the idea that its book was a compilation and not a derivative work using a substantial amount of the original.119 The Court rejected the notion that the book was non-infringing as Campbell indicated that substantiality had both a quantitative and qualitative aspect.120 As a highly factual issue, the Defendant failed to meet its burden precluding entry of summary judgment in its favor.121

B. Sony v. Connectix

In an expressly direct confrontation of fair use, Sony brought suit against a company for its commercial sale of an emulator software program for computers.122 Defendant Connectix used the non-copyrightable elements of Sony’s PlayStation video game console to create its Virtual Game Station123 computer program through reverse .124 In order to do this,

114. Id. at 591–92. 115. Id. at 592–93. 116. Campbell was decided in March 1994 and Midway Mfg. Co. v. Publ’n Intern., Ltd. was decided in May 1994. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Midway Mfg. Co. v. Publ’n Intern., Ltd., No. 94-C-1005, 1994 WL 188531 (N.D. Ill. May 12, 1994). 117. Former and publisher best known for the game series Mortal Kombat. 118. Midway, 1994 WL 188531, at *1. 119. Id. at *2. 120. Id. 121. Id. at *3. 122. Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 598 (9th Cir. 2000). 123. This program allowed one’s computer to read discs created for use on the Sony PlayStation. Thus allowing the play of Sony PlayStation games without the use of a Sony PlayStation. Aaron Giles, Aaron’s Computing History, AARON GILES (last visited May 3, 2015), http://www.aarongiles.com/history/. 124. Sony, 203 F.3d at 598. 258 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015

Connectix had to repeatedly copy Sony’s copyrighted BIOS125 in order to create its emulator, but none of Sony’s BIOS appeared in the Virtual Game Station.126 The Ninth Circuit concluded that from the facts of this case and from its own precedent, Connectix’s intermediate copying of Sony’s BIOS program was fair use.127 First, the Ninth Circuit reached this conclusion by reasoning that the necessity of having to copy the copyrighted material to get to the non- copyrighted material could make it fair use.128 Second, the Court gave a lower degree of protection to Sony’s BIOS than other literary works, as the Copyright Act is for protecting expression not ideas or the functional aspects of software programs.129 For the amount and substantiality of the portion used, this factor would normally go against Connectix, but the Ninth Circuit gave this little weight because of its precedent with intermediate infringement with no infringing content in the final product.130 The Ninth Circuit also determined that the Virtual Game Station was mildly transformative; being innovative for allowing play where one does not have a Sony PlayStation console.131 Finally for the effect upon the market, this weighed in favor of fair use as the Video Game Station was transformative and Sony attempting to have a over what can play their games is an affront to creative expression wanted by copyright law.132

C. Sony v. Bleem Sony saw further defeat in the Ninth Circuit in its suit against the company Bleem.133 Bleem, like Connectix previously, had created its own emulator software for PlayStation video games.134 However, this suit targeted Bleem’s use of screenshots of video games for Sony’s PlayStation in their advertisements for its emulator.135 The Ninth Circuit noted that the use of the screenshots in commercial advertising affects both the first and fourth factors in the fair use analysis.136 The Court concluded that the use of the screenshots is comparative advertisement.137 This weighs the first factor in favor of fair use, as it goes to the benefit of the purchasing public with little loss to the integrity of Sony’s copyrighted material.138 For the second factor, Bleem’s claim of fair use was neither hurt nor helped as the video games are creative in

125. Basic Input-Output System. The software that allows the Sony PlayStation to work, i.e. play Sony PlayStation video games. 126. Id. at 601. 127. Id. at 602. 128. Id. at 603 (quoting Enterprises Ltd. V. Accolade, Inc., 977 F.2d 1550 (9th Cir. 1992)). 129. Id. 130. Id. at 606. 131. Id. 132. Id. at 607. 133. Sony Computer Entm’t Am., Inc. v. Bleem, L.L.C., 214 F.3d 1022, 1030 (9th Cir. 2000). 134. Id. at 1024. 135. Id. 136. Id. at 1026. 137. Id. 138. Id. at 1027. No. 1] THE PLIGHT OF THE LET’S PLAY 259 nature, but the games’ representations in screenshots are merely inanimate slivers.139 In the third factor, the Court found towards fair use as screenshots were a small amount of the video game.140 With the final factor, the Ninth Circuit accepted that the market at issue was for the screenshots themselves, but still leaned towards fair use, as precedent indicated that this type of market does not negatively affect Sony.141 Bleem’s use of the screenshots was deemed fair, negating Sony’s summary judgment to the contrary.142

IV. APPLYING FAIR USE TO LET’S PLAYS While fair use is and should be applied on a case-by-case basis,143 those creating Let’s Plays would benefit greatly from some examples to aid them in making their creations more in-tune with a fair use norm. These examples are not meant to demonstrate all types of Let’s Plays, only some of those that exist.144 First, for a video, the Let’s Play of Resident Evil 5145 by Proton Jon,146 with assistance from his friend Super Jeenius,147 gives an example of a Let’s Play compared to the factors for achieving fair use. Proton Jon was one of the early creators of Let’s Play videos on the Something Awful forum.148 Second, a screenshot Let’s Plays should also be analyzed. The screenshot Let’s Play by Ben “Yahtzee” Croshaw of the video game Flashback149 demonstrates another facet of Let’s Plays that can run afoul of copyright infringement. As an early member of the Something Awful forum, Croshaw contributed to the creation of Let’s Plays.150 Last, is a speed run151 video by Cosmo Wright of the video game : Ocarina of Time.152 Wright is known153 for this particular style of video that shares the

139. Id. at 1028. 140. Id. 141. Id. at 1029. 142. Id. at 1029–30. 143. Campbell, 510 U.S. at 577. 144. An aspect of fair use not fully discussed in this Note is the education exception. The Let’s Play by Bobbin Threadbare of the video game demonstrates this very well. The last third of each video of the Let’s Play gives a well-researched explanation of how the game’s lore was developed from our beliefs and understanding of the world; focusing on conspiracy theories, literature/film, science, and philosophy. ThreadbareInc, Deus Ex: The Lecture Series, YOUTUBE (Nov. 15, 2014), https://www.youtube.com/playlist?list=PL9H-oYsI40xb7gcRVeZ9cTWamY7kWDPV9. 145. Proton Jon, Resident Evil 5 (Co-Op), YOUTUBE, https://www.youtube.com/playlist?list= PLyiQDjAWHJJa4YJ1aBaqKfLg_fFRL6NHJ (last visited May 3, 2015). 146. Proton Jon, YOUTUBE, https://www.youtube.com/user/ProtonJonSA (last visited May 3, 2015). Proton Jon’s actual name is Jonathon Wheeler. 147. SuperJeenius, YOUTUBE, https://www.youtube.com/user/SuperJeenius (last visited May 3, 2015). SuperJeenius is actually Jake Middleton. 148. knezy312lp, NC Interview With ProtonJonSA, NINTENDO CHRON. (May 8, 2013), nintychronicle.wordpress.com/2013/05/08/nc-interview-with-protonjonsa/. 149. Yahtzee, Flashback, LET’S PLAY ARCHIVE (Feb. 2, 2007), http://lparchive.org/Flashback/ (last visited May 3, 2015). 150. Croshaw, supra note 8. 151. Speed Runs are games played as quickly as possible using tricks and innate glitches within the software and hardware. While not exactly a Let’s Play, videos of speed runs have the same markers of a Let’s Play. 152. CosmoSpeedruns, OoT Glitched All Medallions in 1:18:05, live for NumberSMW Marathon, YOUTUBE (Nov. 2, 2012), http://www.youtube.com/watch?v=o0LqjrkpZ1A. 260 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015 same hallmarks of Let’s Plays, showing off a video game with commentary throughout, and is equally affected by issue of fair use.

A. Resident Evil 5 (Co-Op)

1. Purpose and Character of Use The first factor looks at “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”154 First, it is important to weigh the transformative nature of the commentary. This Let’s Play spans the entire length of the video game, showing off the majority of the content. Jon and Jake provide commentary throughout the entire playthrough. This commentary is what arguably makes their work transformative; by adding a “new expression, meaning, or message” to the original game.155 The greater the transformative nature, the less significance is given to other factors that weigh against fair use.156 Jake, having never played Resident Evil 5, gives a perspective of a new player experiencing the game for the first time. Occasionally, Jake commented on some of the more ridiculous aspects of the game, like viruses creating a gigantic monster with more mass than possible from the original creature.157 Jon gives detailed explanations on how to play the game, tips to make the game easier or harder, as well as where to find hidden messages and items in the game itself. Each video ending in this Let’s Play involves Jon going over any objects of interest missed by him and Jake through their playthrough of the game. The second aspect considers the commercial or nonprofit nature of the new product. As a YouTube Partner,158 Jon earns ad revenue from videos he uploads to his channel. Since the Supreme Court specifically stated that commercialization is just one of the factors and itself not determinative,159 Jon earning revenue for his videos does not per se exempt his videos from the fair use exemption. Further analysis is required.

2. Nature of Copyrighted Work The second factor looks at the nature of the original work being copied.160

153. Roland Li, Making Money as a Zelda Speed Runner, (Jan. 9, 2014 12:00 PM), http://www.polygon.com/features/2014/1/9/5280786/making-money-zelda-speed-runner. 154. 17 U.S.C. § 107(1) (2012). 155. Campbell, 510 U.S. at 579. 156. Id. 157. Proton Jon, Let’s Play Resident Evil 5 – Part 13 – Chapter 3-1, YOUTUBE (March 29, 2013), https://www.youtube.com/watch?v=hq5Aj88jo6U&list=PLyiQDjAWHJJa4YJ1aBaqKfLg_fFRL6NHJ&index =13. 158. What is the YouTube Partner Program?, GOOGLE, https://support.google.com/youtube/answer/ 72855 (last visited May 3, 2015); Let’s Play: ProtonJon, TV TROPES, http://tvtropes.org/pmwiki/pmwiki.php/ LetsPlay/ProtonJon (noting that ProtonJon became a YouTube partner on October 18, 2010). 159. Campbell, 510 U.S. at 584. 160. 17 U.S.C. § 107(2) (2012). No. 1] THE PLIGHT OF THE LET’S PLAY 261

As the purpose of copyright is to protect creative and artistic expressions,161 video games, like songs, fall squarely in this protection.162 For parodies, since copying the expressive work is necessary, this prong is useless for the fair use analysis.163 Let’s Plays must also copy expressive works, by extension making this prong unnecessary in this instance.

3. Amount Used For the third factor, it asks “whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying.”164 This looks at the quantity of the materials used as well as the quality.165 Let’s Plays seemingly run afoul of this factor, as illustrate with the example of Resident Evil 5. The videos use a substantial amount of quantity of the video game through its display of a majority of the game. The quality is swept up with that display. However, the Supreme Court noted how parody necessitated the allusion to the original work, conjuring up the original’s more distinctive features and memorable aspects.166 Let’s Plays are necessitated by the same allusion. The purpose of the commentary is to reflect what is visually being seen. This would be a reasonable use much like a parody using the opening of a song.167 But, unlike the parody song at issue in Campbell, which deviated from the original,168 the Let’s Play uses only the original work.

4. Effect on the Market Finally is “the effect of the use upon the potential market for or value of the copyrighted work.”169 There is a heavy burden to show that there has been negligible market harm, but Let’s Plays are generally bolstered by multiple factors. First, Let’s Plays are not substitutes for playing the actual game.170 Second, some companies do not seem to view Let’s Plays as negatively affecting their market. Sony has implemented a function in its new PlayStation 4 video game console that will allow its users to upload snippets of gameplay video to the hosting sites like YouTube without requiring a need for commentary.171 Nintendo of Europe asked its fans to make their own Let’s

161. Campbell, 510 U.S. at 586 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348– 351). 162. Midway Mfg. Co. v. Artic Intern., Inc., 704 F.2d 1009, 1012 (7th Cir. 1983) (“[V]ideo games are copyrightable as audiovisual works under the 1976 Copyright Act . . . .”). 163. Campbell, 510 U.S. at 586. 164. Id. (internal citations omitted). 165. Id. at 587. 166. Id. at 588. 167. Id. at 589. 168. Id. at 594–96. 169. 17 U.S.C. § 107(4) (2012). 170. Croshaw, supra note 8. 171. One Button to Rule Them All – Devs Talk up PS4’s Share Button, PLAYSTATION OFFICIAL MAG. (June 24, 2013, 10:57 AM), https://web.archive.org/web/20140806021653/http://www. officialplaystationmagazine.co.uk/2013/06/24/one-button-to-rule-them-all-devs-queue-up-to-praise-ps4s- share-functionality/. 262 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015

Plays of the game Xenoblade Chronicles to promote the recently released video game.172 Conversely, there are some companies who fear disruption of , like Sega demanding removal of footage from its game series Shining Force from YouTube prior to the release of a new game in the series.173 For this Let’s Play, Jon specifically indicates during his video commentary that his viewers should play along with him, allowing them to better utilize his advice for acquiring all of the hidden items and treasures that he missed.174 While it would be possible for the creator of Resident Evil 5 to license out the creation of a Let’s Play, or to do it themselves, they have not done so. This favors the work being fair use.175

5. Amounting to Fair Use There are two bumps that cast some doubt on whether a court would find the Let’s Play of Resident Evil 5 as protected by fair use. The first is the transformative nature of the work. While having the commentary and voicing critiques of the game in the videos is helpful towards making a work transformative, there is no indication as to how much is needed and as to the requisite quality of the commentary. However, the commentary is continuous throughout the Let’s Play and it creates something more than just the game alone would. Second is the monetary aspect. As fair use is an affirmative defense,176 proving one’s lack of negative effect on the market would be difficult to show. Telling his audience to play the game along with him could help show that he is himself trying to increase the market for the game. Also, Jon earning ad revenue as a YouTube Partner, although it should not weigh against the work being fair use. With these concerns in mind, whether this Let’s Play would be fair use would still fall to the court.

B. Flashback

1. Purpose and Character of Use Looking at the transformative nature of screenshots poses a different perspective than that of a video. The purpose is the same as for video Let’s Plays, showing off the game to an audience so that they can gain an appreciation for the work. While this purpose of the use has not changed, the character has a wholly unique spin. Instead of a video depicting the entirety of the work, the screenshots show only a still of the game at particular moments

172. Create Your Own Let’s Play Videos Contest Launches for Xenoblade Chronicles, NINTENDO (Oct. 4, 2011), http://www.nintendo.co.uk/News/2011/Create-your-own-Let-s-Play-video-contest-launches-for- Xenoblade-Chronicles-252839.html. 173. Timothy Geigner, Sega Goes Nuclear on YouTube Videos of Old Shining Force Game, TECH DIRT (Dec. 7, 2012, 7:32 AM), http://www.techdirt.com/articles/20121206/17321021296. 174. Proton Jon, Let’s Play Resident Evil 5 – Part 1 – Chapter 1-1, YOUTUBE (Feb. 7, 2013), https://www.youtube.com/watch?v=m8nAHyYuZfo&list=PLyiQDjAWHJJa4YJ1aBaqKfLg_fFRL6NHJ&ind ex=1. 175. Campbell, 510 U.S. at 592. 176. Id. at 590. No. 1] THE PLIGHT OF THE LET’S PLAY 263 throughout its gameplay. These individual snapshots are more likely to be seen as something new, if the Ninth Circuit’s opinion in Bleem is to be indicative.177 The screenshots depict a different character than the original game; instead of the audience being shown the direct mechanics of the game itself, they must infer them through interpretation of the stills in addition to the given explanation. For Flashback specifically, Ben “Yahtzee” Croshaw strings the static action together with colorful language178 to not only entice the audience to continue to the next screenshot, but to also impose additional humor.179 Croshaw added additional onomatopoeic words and speech bubbles to the stills to instill a different of humor,180 furthering the distance of his depiction of the game from the original. As for the commercial nature of the use, there is none. The screenshot Let’s Play of Flashback was uploaded to the Something Awful forum.181 Forum members do not receive any compensation for creating Let’s Plays, outside of feedback from other members and personal satisfaction. Even if there were some monetary compensation, it is still only one part of all of the factors.182

2. Nature of Copyrighted Work There would be no difference between the analysis for this video game and any video game. Even with this game being older,183 it had already been established that video games fall under audiovisual works.184 Being a work of creative and artistic expression, the video game Flashback, like all other video games, would be within the core of copyright protection.185

3. Amount Used The quality and quantity of the original work used is further differentiated with screenshots than from videos. While videos necessitate the use of a vast quantity of the original’s materials, screenshots use a significantly less amount.186 By using only occasional stills of the original video game, screenshot Let’s Plays have less to worry about any overuse of the original that would detract from the transformative nature of the new work or interfere with

177. Sony Computer Entm’t Am., Inc. v. Bleem, L.L.C., 214 F.3d 1022, 1022 (9th Cir. 2000). 178. Yahtzee, Flashback, Part 2, LET’S PLAY ARCHIVE, http://lparchive.org/Flashback/Update%202/ (last visited May 3, 2015). 179. Id. 180. Yahtzee, Flashback, Part 3, LET’S PLAY ARCHIVE http://lparchive.org/Flashback/Update%203/ (last visited May 3, 2015). 181. Yahtzee, supra note 149. 182. Campbell, 510 U.S. at 584. 183. Flashback was released in 1992. Flashback: The Quest for Identity, MOBY GAMES, http://www.mobygames.com/game/flashback-the-quest-for-identity (last visited May 3, 2015). 184. 17 U.S.C. § 102(a)(6) (2012); Red Baron–Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 278 (4th Cir. 1989); Midway Mfg. Co. v. Artic Int’l. Inc., 704 F.2d 1009, 1012 (7th Cir. 1983). 185. Campbell, 510 U.S. at 586 (quoting Feist, 499 U.S. at 348–51). 186. Bleem, 214 F.3d at 1030. 264 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015 the original’s market value. This notion is similar to how the Ninth Circuit held in Bleem, that the limited use of the screenshots favored the new work being of fair use.187 If a video Let’s Play requires the substantial use of the original work, similar to how a parody would require the substantial portion of the original, then it stands to reason that a screenshot Let’s Play that can conjure up the essence of the original work with less is more likely to be viewed as fair use. In the Let’s Play of Flashback, Croshaw is able to guide the audience through the entirety of the video game.188 Even though this still does reflect the essence of the original work, it does so without using the entirety of the original. By using his words to fill in the gaps between the depicted actions in each screenshot, Croshaw conjures up the original without the need for the expansive use of the original. This lessens the possible detraction from the transformative nature of Croshaw’s work.

4. Effect on the Market The need to show a negligible effect upon the market of the original work is still the hardest factor to prove, even for screenshot Let’s Plays. Croshaw is noted for his belief that Let’s Plays will never be substitute for playing the original video game oneself.189 This notion is more readily seen with a screenshot Let’s Play. The video game Flashback is an audiovisual work.190 The screenshot Let’s Play strips away the music and sound and limits the visuals to occasional snippets. If one wanted to actually experience the game, they would have to purchase their own copy. Another reason that the effect on the market would be minimal is that the video game at issue is no longer being offered by the developer.191 However, in this instance, the video game Flashback has been remade and released for current audiences to experience.192 The release of this remake seems to suggest that the Croshaw’s actions have done nothing to the market.

5. Amounting to Fair Use The screenshot Let’s Play appears to have fewer issues than a video Let’s Play would. Primarily, screenshots have less to worry about than videos when it regards the amount of the original work being used. It further helps that the screenshots are heavily dependent upon the creator to give them meaning and to connect them into a coherent display. While it is still important for creators to make their commentary have some meaning, the lessor’s use of the original work cannot harm them. As for the effect on the market, for Flashback in

187. Id. at 1028. 188. Yahtzee, supra note 149. 189. Croshaw, supra note 8. 190. Tracey Lien, Flashback is Being Remade by Original Developer, Coming to XBLA and PSN this Year, POLYGON (Apr. 11, 2013, 8:37 AM), http://www.polygon.com/2013/4/11/4211846/flashback-is-being- remade-by-original-developer-coming-to-xbla-and. 191. Id. 192. Id. No. 1] THE PLIGHT OF THE LET’S PLAY 265 particular, any effect would seem to be for the benefit of the creators of the original game. Without an interest in the original, it is unlikely a remake would have been created.193 Since the original video game was released in 1992,194 such an interest is more likely to have been sustained through the existence of the screenshot Let’s Play of the game.195

C. Ocarina of Time Speed Run

1. Purpose and Character of Use In this instance, Cosmo Wright presents a different style of video than what occurs traditionally with a Let’s Play. Wright plays through a video game, specifically Legend of Zelda: Ocarina of Time, by utilizing glitches and tricks to accomplish the game in the shortest time possible.196 The video Wright produced is transformative in two ways. First, like traditional Let’s Plays, Wright provides commentary.197 His focus, though, is on teaching the audience how to perform the various methods he utilizes to bypass aspects of the video game198 instead of critiquing or explaining secrets therein. Second, by highlighting the glitches of the video game,199 Wright demonstrates a new message from the video game that would not otherwise be expressed. This expression of the video game’s glitches and inherent quirks is different from what would normally be seen.200 As for the second aspect, whether the use is for commercial or non- commercial purposes, this video was done for a commercial purpose.201 Wright receives donations from his fans to assist him in making content.202 However, Wright also creates videos for the explicit purpose of raising money for charities.203

2. Nature of Copyrighted Work There is nothing more that could be stated here that has not already been stated previously.204

193. Id. 194. MOBY GAMES, supra note 183. 195. Yahtzee, supra note 149. 196. Li, supra note 153. 197. CosmoSpeedruns, supra note 152. 198. Id. 199. Id. 200. See Li, supra note 153 (explaining one technique used by Wright to position the character at the intersection of two walls and being pushed between the geometry to a normally inaccessible location). 201. CosmoSpeedruns, supra note 152. 202. Li, supra note 153. 203. See id. (discussing how Wright along with others participating in a marathon of speed running video games have raised money for the Prevent Cancer Foundation and Doctors Without Borders). 204. See previous analysis in Part IV(a)(ii) and Part IV(b)(ii). 266 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015

3. Amount Used In comparison to how much of the original work is used, Wright’s videos are closer to that of a screenshot Let’s Play than a video Let’s Play. Instead of the hours of video depicting gameplay, as demonstrated by the Resident Evil 5 Let’s Play,205 the speed run of Ocarina of Time lasts for less than ninety minutes.206 Wright’s video is also favorably seen as being reasonable use of the original work. By focusing on only the smallest aspects of the game, Wright uses only what is needed to show how to get through the game as quickly as possible.

4. Effect on the Market This factor, while still difficult to show negligible harm to the original’s market, has a different quality as to what type of harm could occur. Wright’s video depicts the video game’s flaws to the audience and exploits them.207 Arguably, since companies spend months to years testing their product to ensure the least amount of glitches and bugs,208 they would not want the flaws of their product displayed for everyone to see. However, such a display would be akin to a harsh critique suppressing demand for the original work—a harm not covered by the Copyright Act.209 Also, as this work shows the flaws within the game, it is not something for which the video game companies themselves would wish to produce.

5. Amounting to Fair Use For this work, it exhibits features from both video and screenshot Let’s Plays. Similar to screenshots, Wright’s speed run uses less than the entirety of the original work. The part the speed run does use is necessitated by the nature of what he is using the work for, the same for a traditional video Let’s Play. By providing commentary over the gameplay about how to do the special tricks to exploit the video games glitches, Wright incorporates his own new message into the original. The fact that Wright is being compensated for creating this video is still important to note as one of many factors. Wright’s speed run could have a harmful effect on the market for the original by highlighting the flaws within the game. However, similar to how critiques can suppress demand for the original without violating copyright law, as long as the speed run does not supplant the original, any possible harm would not factor into weighing against fair use.

205. Proton Jon SA, supra note 145. 206. CosmoSpeedruns, supra note 152. The video lasts for eighty minutes but less time than that is dedicated to actual gameplay. 207. Id. 208. See generally Jimmy Thang, The Tough Life of a Games Tester, IGN (Mar. 29, 2012), http://www.ign.com/articles/2012/03/29/the-tough-life-of-a-games-tester (discussing the hardship of video game tester indicating the long work hours and the several months of work to find all of the bugs in a video game). 209. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590–91 (1994). No. 1] THE PLIGHT OF THE LET’S PLAY 267

V. RECOMMENDATIONS Unlike other large media corporations, like the Record Industry Association of America, video game companies have not litigated to prevent the distribution of their intellectual property on the Internet.210 Despite the limited likelihood of a lawsuit against a Let’s Play creator, succeeding at trial is not the only way for Let’s Plays to avoid infringing upon copyright law.

A. Acquiescing Companies would be better served by allowing these Let’s Plays to continue. It could benefit their own market by encouraging players to create Let’s Plays to win contests,211 thus ensuring that some people will buy their product. Or at least prevent the outrage of fans turning against them for limiting their enjoyment of video games, as Nintendo learned firsthand.212 Fans are what video game companies thrive on for their market.213 Acquiescing to them keeps them happy and willing to continue to purchase their products. Angering them would only lead to negative publicity, much like what befell the Record Industry Association of America.214 Other incidents in the video game industry have shown that fans will loudly and repeatedly voice their displeasure for a company’s actions.215 BioWare, the creator of the Mass Effect series, caught the ire and outrage of their fans when the ending of the third game was thought to have ruined the story of the entire series.216 In an effort to salvage their reputation with their fans, BioWare released new content for the third game in an effort to modify the original ending.217 Another example is when the game XCOM was announced in 2010 as a revival to the dormant series.218 Its change from a strategy game to a first person shooter was seen as a betrayal to the fans of the original series.219 Fans were only appeased when the game XCOM: Enemy

210. 12-year-old Settles Music Swap Lawsuit, CNN (Feb. 18, 2004, 1:09 AM), http://www.cnn.com/2003/TECH/internet/09/09/music.swap.settlement/. 211. See NINTENDO, supra note 172 (discussing a Let’s Play video contest). 212. Plunket supra note 1; Futter supra note 5. 213. See generally Timothy Geigner, How Important Are YouTube Game Videos To Game Companies?, TECHDIRT (Jul. 8, 2013, 8:01 PM), https://www.techdirt.com/articles/20130702/06235623689/ how-important-are-youtube-game-videos-to-game-companies.shtml (“Not only are these gaming videos not doing you any harm, they’re helping you in ways you may not have considered.”) 214. Robert VerBruggen, Ripping the RIAA, AM. SPECTATOR (Jan. 1, 2008), http://spectator.org/articles/ 44324/ripping-riaa. 215. See generally Sparky Clarkson, ’s Ending Disrespects Its Most Invested Players, KOTAKU (April 12, 2013, 3:15 PM), http://kotaku.com/5898743 (originally published April 3, 2012) (discussing the dissatisfaction fans felt for the end of a video game); Stephen Totilo, Why I’m Glad BioWare Might Change Mass Effect 3’s Ending for the Fans, KOTAKU (March 21, 2012, 6:30 PM), http://kotaku.com/ 5895369 (discussing fans’ dissatisfaction with the game). 216. Clarkson, supra note 215; Totilo, supra note 215. 217. Totilo, supra note 215. 218. Gus Mastrapa, X-COM Returns As First-Person Shooter, WIRED (Apr. 14, 2010, 12:28 PM), http://www.wired.com/2010/04/xcom/. 219. Noah Antwiler, 2010 Coverage - Day 2, Deus Ex 3, BLIP, http://blip.tv/the-spoony-experiment/ e3-2010-coverage-day-2-deus-ex-3-3797951; AngryJoeShow, XCOM —New Details and Features, YOUTUBE (June 23, 2011) http://www.youtube.com/watch?v=NO_pxLg4AFo. 268 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015

Unknown, a return to the strategy gameplay of the original series, was announced.220 Even Nintendo earned kudos from fans for sponsoring EVO 2014, the biggest fighting game tournament of the year.221 Especially, when in 2013, Nintendo attempted to have one of its games blocked from being shown.222 Other companies have also felt the ire of their fans. Electronic Arts223 had the dubious honor of being a repeat winner of Consumerist’s Worst Company in America competition for 2012 and 2013.224 Thankfully for it, it managed to lose out early on in 2014.225 Ubisoft226 has also suffered woe in 2014. Fan accusations include dressing up video game footage for trailers, only for it to be less remarkable upon release, failing to give a reasonable response as to why the newest game in their Assassin Creed series could not have playable female characters, that same game being released with glitches and with an embargo preventing reviews from being viewable until twelve hours after the game launched.227 Even with the apologies for the failed launch of its game, still has to deal with concerned fans not trusting future games from the developer.228 These examples show that catering to one’s fans is most beneficial for video game companies that wish to have repeated business.

220. AngryJoeShow, XCOM AJ Interview, YOUTUBE (June 9, 2012) http://www.youtube.com/ watch?v=E_XLGJSIoyo. 221. Aevee Bee, Your Guide To Evo 2014, The Year’s Biggest Fighting Game Tournament, KOTAKU (July 10, 2014, 5:00 PM), http://kotaku.com/your-guide-to-evo-2014-the-years-biggest-fighting-game- 1603060216; Steven Bogos, Nintendo Will Officially Sponsor the Next EVO Fighting Tournament, ESCAPIST MAG. (July 7, 2014, 3:57 AM), http://www.escapistmagazine.com/news/view/135927-Nintendo-Will- Officially-Sponsor-The-Next-EVO-Fighting-Tournament. 222. Bogos, supra note 221. 223. Also known as EA, is a video game developer best known for the Madden and NCAA Football series. 224. Chris Morran, EA Makes Worst Company in America History, Wins Title for Second Year in a Row!, CONSUMERIST (Apr. 9, 2013), http://consumerist.com/2013/04/09/ea-makes-worst-company-in-america- history-wins-title-for-second-year-in-a-row/. 225. EA’s Worst Company in America Reign Comes to an End With Loss to Time Warner Cable, CONSUMERIST (Mar. 24, 2014), http://consumerist.com/2014/03/24/eas-worst-company-in-america-reign- comes-to-an-end-with-loss-to-time-warner-cable/. 226. Video game developer best known for their Assassin’s Creed series. 227. Paul Tassi, Congratulations Ubisoft, You’re the New EA, FORBES (Nov. 12, 2014, 10:56 AM), http://www.forbes.com/sites/insertcoin/2014/11/12/congratulations-ubisoft-youre-the-new-ea/. 228. Christian de Looper, Ubisoft Apologizes for ‘Assassin Creed: Unity’ Launch with Free Games, TECH TIMES (Nov. 28, 2014, 4:17 PM), http://www.techtimes.com/articles/21137/20141128/ubisoft- apologizes-assassins-creed-unity-launch-free-games.htm. No. 1] THE PLIGHT OF THE LET’S PLAY 269

B. Licensing A likelier alternative for Let’s Plays is for them to be licensed or sanctioned by the video game company. This possibility has already been seen through Sony implementing a video sharing option in their new PlayStation 4229 and Nintendo of Europe asking for players to make their own Let’s Play of the game Xenoblade.230 Sony has gone even further than just allowing the sharing of videos and live stream of video game footage from its new console.231 The division that focuses on PC games, Sony Online Entertainment, has given its blessing to allow for “video creators” to utilize game content for their videos, including Let’s Plays.232 Sony Online Entertainment also allows for the video creators to monetize their videos on video hosting sites as long as they follow the division’s promulgated policy constraints.233 Nintendo has taken a different approach. Claiming an inability to review the thousands of requests asking for permission to use its intellectual property, Nintendo has a blanket position of declining any request.234 However, Nintendo does state that relevant laws may allow for use of its property even without its permission and that interested parties should consult with an attorney to determine the extent permitted by law.235 has yet another approach for its games on the video game console and for personal computers running a Windows operating system.236 While Microsoft will grant a limited license to use its game content to make things, like Let’s Plays, any attempts at monetization or earning some type of compensation would void the license.237 Beyond these three main video game companies, other companies have also voiced their opinions as to whether they will let their games be used for Let’s Plays. Games238 has stated that fans can post images of its games on the Internet as long as it is for “non-commercial” purposes and does not spoil the plot of the games.239 Violation would result in immediate take down notice, and 2K Games explicitly states that it has the ability to have its material removed at any time, for any reason.240 2K Games is aware that Let’s Plays

229. PLAYSTATION OFFICIAL MAG., supra note 171. 230. NINTENDO, supra note 172. 231. Your Gameplay, PLAYSTATION 4 USER’S GUIDE, http://manuals.playstation.net/ document/en/ps4/share/broadcast.html (last visited May 3, 2015); Sharing a Video Clip, PLAYSTATION 4 USER’S GUIDE, http://manuals.playstation.net/document/en/ps4/share/videoclip.html (last visited May 3, 2015). 232. What is Player Direct?, SONY ONLINE ENT., https://www.soe.com/player-direct (last visited May 3, 2015). 233. Id. 234. Company FAQs, May I Use Nintendo Game/Music/Graphics/Website Content?, NINTENDO, http://www.nintendo.com/corp/faq.jsp#graphics (last visited May 3, 2015). 235. Id. 236. Game Content Usage Rules, XBOX, http://www.xbox.com/en-US/developers/rules (last visited May 3, 2015). 237. Id. 238. Video game developer; library includes Borderlands, BioShock, and X-COM. 239. 2K David, Policy on Posting Copyrighted 2K Material (Dec. 16, 2014, 1:00 AM), 2K, http://support.2k.com/hc/en-us/articles/201335153-Policy-on-posting-copyrighted-2K-material. 240. Id. 270 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2015 would necessitate showing spoilers and have created a caveat that would allow the showing of spoilers in that context,241 and allowed fans to ask whether a particular display would be a violation.242 Blizzard Entertainment243 also allows for its video games to be used in personal creations by its fans, but only for non-commercial uses and on free access .244 The only caveat Blizzard has is for websites that offer both free access and a premium access for a fee.245 Productions246 has a fully open policy, encouraging its fans to make videos, Let’s Plays and to monetize them if they wish to.247 Frictional Games248 has also given its fans the freedom to monetize videos based on its video games.249 Valve250 gave permission for its video games to be used for non-commercial use, but does allow for its fans to monetize its videos through YouTube’s Partner program or other similar programs.251 By giving some type of license, video game companies would achieve three things. First, they would avoid having to deal with the legal quandary as to whether Let’s Plays generally fall under fair use. Outside of a direct suit, which would only end badly for the company even if they win, the answer still wouldn’t be clear. Second, the fans of the video game companies would recognize those companies as caring for their desires. Many companies see no reason to deny their fans the opportunity to enjoy video games however they choose.252 Third, a license could allow the companies to make money through licensing fees. Such a fee would still depend on the fans, but the option would allow them to continue making Let’s Plays without fear of possibly violating copyright law.

VI. CONCLUSION Let’s Plays could very well fall under the protection of the fair use doctrine. By providing commentary over the gameplay, they can create a new, transformative work from the original. Although some of the creators of Let’s Plays are earning revenue from the use of the video game company’s original

241. Id. 242. Id. 243. Video game developer; library includes World of Warcraft, StarCraft, and Diablo. 244. Blizzard Video Policy, BLIZZARD ENT., http://us.blizzard.com/en-us/company/legal/ videopolicy.html (last visited May 3, 2015). 245. Id. 246. Creator of the video games Psychonauts and Brütal Legend. 247. Frequently Asked Questions, DOUBLE FINE PRODUCTIONS, http://www.doublefine.com/about/ (last visited May 3, 2015). 248. Created the Penumbra series and Amnesia series. 249. Jens, YouTube Monetization, Permissions to do Creations Based on Your Work and the Alike, (Nov. 13, 2013, 10:20 AM), FRICTIONAL GAMES, http://www.frictionalgames.com/forum/thread-23849.html. 250. Creator of the Portal series, Half-Life series, and Team Fortress series. 251. Legal Info: Valve Video Policy, VALVE, http://www.valvesoftware.com/videopolicy.html (last visited May 3, 2015). 252. See generally WHOLETSPLAY, www.wholetsplay.com/wiki/doku.php (last modified Aug. 28, 2014, 5:01 AM) (listing a majority of video game developers and their stance on allowing Let’s Plays of their games). No. 1] THE PLIGHT OF THE LET’S PLAY 271 work253 that does not prevent the new work from being transformative. As long as the original work is not being supplanted in the market and the company is not being denied the opportunity to create their own derivative work, the Let’s Play can coexist with the original work. Video game companies are increasingly seeing the value of Let’s Plays and their fans’ enjoyment of those works.254

253. See generally Plunket, supra note 1 (discussing a move by Nintendo that prevents streamers from making advertising money on the Let’s Play videos they upload). 254. E.g. Game Content Usage Rules, XBOX, http://www.xbox.com/en-US/developers/rules (last visited May 3, 2015) (“[w]e know that people like you . . . love our games and sometimes want to use things like gameplay footage, screenshots, music, and other elements of our games . . . to make things like machinima, videos, and other cool things”).