Game On: Fair Play and Fair Use
By Nicole Prieto, Staff Writer
It was October 2013 when everyone gathered in my dorm’s common area for the big game. If memory serves rights, a projector was set up alongside someone’s laptop and speakers. The room was abuzz with talk on who’d win or who had the better strategy. It wasn’t a football game we were counting down to, however: it was the 2013 League of Legends World Championship.
Staples Center was sold out that night. [1] An elaborate, animated video introduction preceded the real-life gamers who entered the scene. Two teams from South Korea and China. [2] A packed stadium lit up and decked out like a rock concert. Id. And much like watching football, I had a hazy idea of what was happening. As I sat staring bewildered at the video feed switching between the gamers at their terminals and the LoL match they played, I realized we were probably watching one of the world’s most expensive “Let’s Plays.”
If that term’s unfamiliar, just imagine sitting on your friend’s couch watching him play “Mario Kart” — silently resisting the urge to backseat drive as he launches off Rainbow Road for the umpteenth time. Now, picture doing so at home behind the comfort of your own laptop. For an experiential crash course, just click around Twitch or YouTube Gaming, Google’s recently launched streaming hub that seems to put game walkthroughs, commentaries, and reviews in easy reach. [3] [4] Typing in “The Walking Dead: Season Two” in the search bar, for instance, and clicking the subsequent page’s “Let’s Plays” tab will pull up over a dozen part-one videos for the game. [5] Rinse and repeat for any other major title you can think of.
If you’re wondering how any of that is even legal, let alone promoted by YouTube, you wouldn’t be alone. What seems to make hundreds of hours-long streams — often split up into dozens of videos that seem to function as free, semi-interactive movies — immune to Digital Millennium Copyright Act takedowns? Not much more, it seems, than the copyright holders’ discretion. But at least according to PBS Game/Show, there could be a viable “fair use” argument to make in the Let’s Play’s defense. [6]
So, what exactly is “fair use”? The idea posits that a work used “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” [7] at *4 (quoting 17 U.S.C. § 107 (emphasis added)). In his note “Video Games, Fair Use and the Internet: The Plight of the Let’s Play,” Ivan O. Taylor Jr. writes that “there is no established legality as to whether Let’s Plays fall under the fair use exception of copyright law” — leaving users at the mercy of streaming sites’ policies. [8] at *249. The future of Let’s Plays isn’t necessarily bleak, however.
Around mid-September, the U.S. Court of Appeals for the Ninth Circuit stated in Lenz v. Universal Music Corp. that “[f]air use is not just excused by the law, it is wholly authorized by the law.” Id. In the instant case, Stephanie Lenz had uploaded a 29-second video in 2007 that featured her children dancing to Prince’s song “Let’s Go Crazy.” Id. at *1. Universal had the video taken down supposedly out of a good faith belief that it was unauthorized; it failed, however, to mention anything about fair use when it protested Lenz’s later counter-notification to have the video reinstated. Id. at *2. Essentially, for Universal’s takedown notification to be valid, it needed to have “a good faith belief the video did not constitute fair use.” Id. at *6.
Let’s Plays that lean heavy on somehow reacting to game content, stories, or features could possibly find safe harbor under “fair use.” Taylor writes that “[b]y providing commentary over the gameplay, they can create a new, transformative work from the original.” [8] at *270. Making money off of a Let’s Play wouldn’t automatically preclude its “transformative” nature. Id. at *270-71. Say, through YouTube advertising revenue generated by users registered as “content partners.” [7] at *15 n.1.
Like major eSports events, from the gaming industry’s perspective, the publicity generated from a well-watched Let’s Play may be what matters most. In theory, watching someone else’s play-through of a game could motivate viewers to buy it and make their own gameplay choices. Just as easily, however, some Let’s Plays can remove any incentive to purchase games at all. If you’d rather watch a game for its plot than strategize an attack, there are “No Commentary” versions that can immerse you in a game’s atmosphere — sans the voiceover that could make a video a legally cognizable “transformative” work to begin with.
At the moment, if you’re someone uploading game walkthroughs or reviews to your streaming site of preference, you may not necessarily face a DMCA takedown any time soon. Let’s Plays seem to be part of an odd breaking ground in fair use, where cases like Lenz v. Universal Music Corp. could work in their favor in the near future. The Ninth Circuit has now held that someone (or something) on the copyright holder’s end must take a long enough look at a Let’s Play to see that it clearly isn’t fair use before trying to get it taken down. [7] at *11. Factors to consider would be the content’s “purpose and character,” “nature of the copyrighted work,” how much of the copyrighted content is used, and the content’s effect on the “potential market for or value of the copyrighted work.” Id. at *4 (quoting 17 U.S.C. § 107).
It isn’t enough that these multi-part videos contain copyrighted game content for them to be automatically unauthorized in the eyes of the law. At least as long as the video contains some kind of commentary, reaction, or educational purpose in relation to the material being streamed, it could be an uphill argument to say that it wouldn’t fall under “fair use.” Conversely, the outcome wouldn’t likely fare well for videos in the strictly “No Commentary” category — where substantial portions of the work are on freely on display without much input from the player beyond the personal in-game choices they make.
So, are Let’s Plays illegal? Not necessarily. Are they immune to DMCA takedowns? The answer is, as it often seems to be, “It depends.” Let’s Plays fans can at least reasonably rest assured that their favorite streams aren’t destined for the digital chopping block.
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[1] Paul Tassi, League of Legends Finals Sells Out LA’s Staples Center In An Hour, Forbes (Aug. 24, 1013), http://www.forbes.com/sites/insertcoin/2013/08/24/league-of-legends-finals-sells-out-las-staples-center-in-an-hour/.
[2] Leah Jackson, Looking Back on the League of Legends Championship Series Grand Finals, IGN (Oct. 7, 2013), http://www.ign.com/articles/2013/10/07/looking-back-on-the-league-of-legends-championship-series-grand-finals.
[3] Twitch Interactive, Inc., Twitch, Twitch.tv, http://www.twitch.tv/, (last visited Oct. 7, 2015).
[4] Google, YouTube Gaming, YouTube.com, https://gaming.youtube.com/, (last visited Oct. 7, 2015).
[5] Google, The Walking Dead: Season Two – YouTube Gaming, YouTube.com, https://gaming.youtube.com/game/UCEkYfSNSzjCWL1HnrQYD0vA#tab=3, (last visited Oct. 7, 2015).
[6] PBS Game/Show, Are Let’s Play Videos Illegal? | Game/Show | PBS Digital Studios, YouTube.com, https://www.youtube.com/watch?v=28NZxeViHZY, (last visited Oct. 7, 2015).
[7] Lenz v. Universal Music Corp., No. 13-16106, 2015 WL 5315388 (9th Cir. 2015).
[8] Ivan O. Taylor Jr., Note, Video Games, Fair Use and the Internet: The Plight of the Let’s Play, 2015 U. Ill. J.L. Tech. & Pol’y. 247 (Spring 2015).
