On Nintendo v. Let’s Plays
It seems that – perhaps out of anger due to low Wii U sales – Nintendo is taking its vengance out on gamers by filing copyright complaints against Youtube “Let’s Play” videos, walkthroughs, and any video that has Nintendo-owned content. It’s important to point out that, unlike Sega did a few years ago, Nintendo is NOT taking down videos or channels. Instead, it’s using content ID matching systems to place ads on videos using footage from Nintendo games and redirecting revenue from the major “Let’s Play-ers”. Greg Lastowka has a great explanation of the legal reasoning based on copyright, trademark, and IP policy over at Gamasutra that you should go read if you haven’t already, so I won’t use the same approach. What I would like to do instead is look at some of the claims being made regarding this “scandal” and explain their validity, then state my position on whether Nintendo should or should not do what they are doing.
Over at Screw Attack, Ghost King replies to the claims that “Nintendo is stealing from Let’s Players”, “Nintendo is trying to screw over their customers”, “Nintendo is Dooming Let’s Plays”, and “Nintendo is screwing over their PR with this.” I mostly agree with his comments. Indeed, the “free promo” and “it’s killing their PR” arguments are ridiculous, and – as Lastowka explained – Nintendo is within their legal right when they file these claims. What I don’t agree with is that this is an overblown issue.
When a game company creates a game, they create a text meant to be experienced. When someone creates a Let’s Play video, they are creating a transformative text that is critical of the original. When a player speaks over gameplay footage making statements of value or guiding the viewer through the game while making statements regarding play mechanics, they are making critical assessments of the original texts – they are making a commentary. Now, if we consider the Appeals Court ruling of Prince v. Cariou of a few months ago, you will notice that Prince’s appropriations were far less transformative than Let’s Play videos are, and their commentary on the original work far less accessible than that found in Let’s Play videos. By that logic, and the precedent set on the Prince case, then Nintendo should have no claim to Let’s Play videos that are thorough and transformative enough.
That being said, Nintendo claims to be using its power over IP judiciously based on the length of the content used. This is a fine first step, but not enough. The questions that should be asked should not be regarding the length of the content, but should instead focus on the nature of the Let’s Play video. I would argue that Nintendo – or any game company – has the right to unedited footage of their game. Someone who plays through a game and simply puts up the video online without any sort of commentary should expect to get a claim. However, when someone plays through a game while making a commentary, whether the commentary is a well thought-out analysis of gameplay mechanics and narrative considerations (something very close to scholarly game analysis) or a player saying “wow this sucks it’s so horrible OMG That was awesomez!” (closer to what Prince did with Cariou’s photographs), they are making a transformative work, which gives it value of its own. In short, the point that I’m trying to make is that reviews, let’s plays, and walkthroughs should all be considered original / transformative works in their own right.
Now, I’d like to address the comments made by some folk in the Retsutalk podcast. They seem to be for Nintendo, or developers / publishers in general, controlling the kind of videos that people put out. This is a step beyond filing copyright claims. The argument that they make is that “if you make a game, you don’t want people saying negative things about it, so you as a developer should have the ability to take it down”. They make various versions of this argument between timestamps 13:00 and 45:00. I’m not sure if they’re familiar with the concept of censorship, but that never led to anything positive. If suddenly developers file copyright complaints against reviewers who speak of their games negatively, that will affect the video game community negatively. Reviewers will be scared to speak their minds and lose credibility, people will lose faith in the developers and perceive them as trying to hide the bad aspects of their games, and games might even end up becoming more repetitive than what we have now. And so, by no means do I want anyone filing any type of copyright notice against someone else because ‘they don’t like how the product was reviewed’. Honest reviews are part of a healthy, vibrant consumer-driven monetary ecosystem, and to censor that… well… that just won’t do.