Are Let’s Play videos legal?
Let’s Play videos (or LP videos for short) have grown significantly over the past few years as more and more gamers play PC games (or play console games on ROMs) and have easy access to screen capture and video editing software.
But are they legal? Let’s discuss.
What’s a Let’s Play video?
A Let’s Play video is a style of video that takes a viewer through the playthrough of a video game, with or without commentary by the gamer recording the video. Let’s Play videos aren’t really walk-throughs or strategy guides because they are subjective in nature.
Let’s Play videos differ from live-streaming services, like Twitch, because Let’s Play videos are curated. They’re usually scripted, edited and crafted with more intention whereas a livestreaming experience is unedited and literally live.
The legal issues of Let’s Play videos come into question with regard to intellectual property rights, namely copyright and distribution rights.
When you think about games themselves, though, they’re essentially just masses of intellectual property rights. The audio, the graphics, the production, the company’s brand, everything – it’s all IP owned by the developer or publisher through copyright or trademark laws.
Developers or publishers own the copyright and distribution rights on the media assets of a game. This means that the work (the game) they created is theirs and they can decide if and how people can use its assets.
Nintendo, for example, has historically asserted that they retain the copyright on their games and have requested Let’s Play videos to be taken down as they violate their copyright.
Ubisoft and Microsoft Studios, on the other hand, have specific rules for what’s allowed to be used in Let’s Play videos and how people can monetize from them – as long as they adhere to the guidelines.
YouTube, one of the primary platforms for Let’s Play videos, generally complies with the Digital Millennium Copyright Act (DMCA) and therefore will respond to copyright issues to maintain its safe harbor protection. They will typically side with the copyright holder when take-down notices are issued and respond by taking down the Let’s Play video.
As we wrote about recently regarding sponsorships and disclosures, Let’s Play videos also have legal snags when it comes to FTC guidelines. Reviewers and Let’s Play video creators don’t always disclose when they’ve received free promotional copies of games from developers and publishers.
The FTC is still refining its rules here as online media keeps changing at a rapid pace but remember, it’s always safer to err on the side of disclosure.
What is Fair Use?
The biggest argument Let’s Play video creators have on their side is the claim that their videos fall under fair use. Fair use is essentially the copying of copyrighted material for limited purposes, such as commenting on, criticizing, or parodying the work.
In the US, fair use is intended to balance the interests of copyright holders with the public interest and First Amendment free speech rights and when invoking fair use, the creator can make their work without getting permission from the copyright holder.
There is a four factor test that applies to fair use. Stanford summarizes the four-factor test as follows:
- The purpose and character of your use
- The nature of the copyright work
- The amount and substantiality of the portion taken, and
- The effect of the use upon the potential market
That last bullet is a big sticking point for Let’s Play. Smaller developers may embrace Let’s Play videos as they help spread the word about their games and boost their marketing efforts, but in some instances, watching someone do an entire Let’s Play series of a game may prevent a sale of the game itself as the viewer may no longer have an incentive to purchase it to play it. Fair Use is an affirmative defense. It is basically admitting the infringement, but saying “this is a Fair Use for these reasons.” Whether a particular video will be considered Fair Use is a question for courts; if the goal is to stay out of court, relying on Fair Use is not a good plan.
Long story short
Creators of a Let’s Play video should check to make sure the developer or the publisher has given its community permission to make the videos. A majority of developers and publishers now have terms and conditions applicable to these situations. This site offers a great resource for companies and their current policies, too. Of course, as Pew Die Pie recently learned, all licenses are revocable unless their terms say otherwise. So, a developer can pull the plug even where it might have previously given permission.