Recently on Twitter I had a discussion of sorts with a Let’s Player regarding #WTFU within context to LPs. Now I love watching LPs, especially horror ones from one chap in particular, “Helloween4545”.
For those that don’t know what #WTFU stands for, it is: Where is The Fair Use.
An event that has started in response to the evidence of how easy it is for companies to abuse the copyright system of YouTube and get away with it. Not to mention how broken YouTube’s system is as it hardly does anything to protect its creators (unless you’re a big name and bringing in lots of revenue of course). But that maybe a conversation for next time, today we focus on fair use and video games.
Do video games fall under fair use? Yes, well no. Okay maybe they do, then again maybe they don’t.
So which is it?!
It is a muddy territory we get into my friends whenever we discuss fair use. Let’s first start by getting an understanding of fair use here. There are 4 terms (or questions) people must adhere to in order for their content to be protected under fair use. The terms are as follows:
- The purpose and character of your use
- The nature of the copyrighted work
- The amount of sustainability of the portion taken and
- The effect of the use on the potential market
If you’re sitting and scratching your head, I wouldn’t blame you. Legal jargon never has made much sense has it now?
Let’s look at what we as consumers and the non-legal persons need to worry about. The material you used under fair use, is it “trans-formative” by any means? And what effect could your LP of a game have on the potential revenue market for the original publishers and developers?
What do I mean by trans-formative?
Simply put, does it change the content in anyway from it’s original experience? This can deal with things like the material being used for commentary, criticism and or parody purposes. I’m sure there are more, but these are the ones that popped up in my research.
In LPs, people normally commentate over their gameplay, whether it be during or after the play has been recorded. Now this one is 50-50 in how it would work. If you’re a quieter LPer, you probably can’t get away with this as majority of the base experience with observing a game is still there. If you’re talkative for the most part during your sets/videos, you’ll have fulfilled the trans-formative aspect of fair use (from my understanding).
What about the impact it could have on the original market?
This really depends on the game. If you are playing a game that is very story driven and extremely linear, it probably won’t have a positive effect unless your game is really good and recommended to others. But why is this so? Because a story heavy games primarily have their experiences woven into learning the story. So if you watch an LP of the game, what is the point of playing that game then?
Now if we have a horror game, or some other game that is based around inducing certain feelings out of the player (ie. Journey, Alien: Isolation), then the LP falls under Fair Use. Again, why? Because the game is not relying on something people observe to understand alone, the game itself is an experience that you’ll only truly understand once you play it for yourself. Games that give you “unlimited” freedom such as Minecraft also fall under Fair Use, because there is no linear narrative (aside from the story mode now, which does not fall under Fair Use to some extent) and you can go around building whatever it is you imagine. Minecraft is more about the experience of using your imagination within a game world to build something.
I’ll personally attest to wanting to get games that I saw were more experience driven than the story driven games. Most of my games library is composed of more experience driven games with an occasional mix of great story driven elements to them.
Whenever video games rely on story alone, such as TellTale games, I would wager they aren’t covered under Fair Use due to the impact they can have on their market. But when a game relies on something more than the story, it relies on the gameplay to provide an experience, to some extent your game and LP does fall under fair use. I say to some extent because no game is going to be 100% Fair Use material, game development does not allow it.
Plus one should keep in mind that basically all components of the game are copyrighted under an intellectual property. Meaning whenever you make a video of the game, you’re using their copyrighted work. But thanks to Fair Use, you’re protected to a certain degree.
Is Fair Use a confusing world to be in?
Yes, especially when you’re not a critic or a parody maker. LPers are probably in the grayest of areas, it all depends on what they play and how they choose to play it. Games with choices will fall more under Fair Use, compared to a completely story driven, with little gameplay and linear game.
At the end of the day, we can only do what we think is right from our understanding of Fair Use as flawed as it maybe. Fair Use after all has no set definition, there have been multiple variants of it over the year through court rulings.
What are your thoughts on this?
Comment down below if you’ve more to add to this or a counter-argument perhaps.
Thanks for reading!
- What is Fair Use? – http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
- A legal guide to Let’s Play and gaming videos – http://www.gamerlaw.co.uk/2013/a-legal-guide-to-lets-play-and-gaming-videos/
- “Let’s Play”-friendly developers wiki – http://letsplaylist.wikia.com/wiki/%22Let’s_Play%22-friendly_developers_Wiki