{"id":981,"date":"2015-10-07T17:13:06","date_gmt":"2015-10-07T22:13:06","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=981"},"modified":"2017-11-20T20:45:26","modified_gmt":"2017-11-21T01:45:26","slug":"game-on-fair-play-and-fair-use","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2015\/10\/07\/game-on-fair-play-and-fair-use\/","title":{"rendered":"Game On: Fair Play and Fair Use"},"content":{"rendered":"
\"Photo<\/a>
Photo Courtesy of DenOfGeek.com<\/figcaption><\/figure>\n

Game On: Fair Play and Fair Use<\/p>\n

By Nicole Prieto, Staff Writer<\/p>\n

It was October 2013 when everyone gathered in my dorm\u2019s common area for the big game. If memory serves rights, a projector was set up alongside someone\u2019s laptop and speakers. The room was abuzz with talk on who\u2019d win or who had the better strategy. It wasn\u2019t a football game we were counting down to, however: it was the 2013 League of Legends World Championship.<\/p>\n

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.<\/u> 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\u2019s most expensive \u201cLet\u2019s Plays.\u201d<\/p>\n

If that term\u2019s unfamiliar, just imagine sitting on your friend\u2019s couch watching him play \u201cMario Kart\u201d \u2014 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\u2019s recently launched streaming hub that seems to put game walkthroughs, commentaries, and reviews in easy reach. [3] [4] Typing in \u201cThe Walking Dead: Season Two\u201d in the search bar, for instance, and clicking the subsequent page\u2019s \u201cLet\u2019s Plays\u201d 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.<\/p>\n

If you\u2019re wondering how any of that is even legal, let alone promoted by YouTube, you wouldn\u2019t be alone. What seems to make hundreds of hours-long streams \u2014 often split up into dozens of videos that seem to function as free, semi-interactive movies \u2014 immune to Digital Millennium Copyright Act takedowns? Not much more, it seems, than the copyright holders\u2019 discretion. But at least according to PBS Game\/Show, there could be a viable \u201cfair use\u201d argument to make in the Let\u2019s Play\u2019s defense. [6]<\/p>\n

So, what exactly is \u201cfair use\u201d? The idea posits that a work used \u201cfor purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright<\/u>.\u201d [7] at *4 (quoting 17 U.S.C. \u00a7 107 (emphasis added)). In his note \u201cVideo Games, Fair Use and the Internet: The Plight of the Let\u2019s Play,\u201d Ivan O. Taylor Jr. writes that \u201cthere is no established legality as to whether Let\u2019s Plays fall under the fair use exception of copyright law\u201d \u2014 leaving users at the mercy of streaming sites\u2019 policies. [8] at *249. The future of Let\u2019s Plays isn\u2019t necessarily bleak, however.<\/p>\n

Around mid-September, the U.S. Court of Appeals for the Ninth Circuit stated in Lenz v. Universal Music Corp.<\/u> that \u201c[f]air use is not just excused by the law, it is wholly authorized by the law.\u201d Id.<\/u> In the instant case, Stephanie Lenz had uploaded a 29-second video in 2007 that featured her children dancing to Prince\u2019s song \u201cLet\u2019s Go Crazy.\u201d Id.<\/u> 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\u2019s later counter-notification to have the video reinstated. Id.<\/u> at *2. Essentially, for Universal\u2019s takedown notification to be valid, it needed to have \u201ca good faith belief the video did not constitute fair use.\u201d Id.<\/u> at *6.<\/p>\n

Let\u2019s Plays that lean heavy on somehow reacting to game content, stories, or features could possibly find safe harbor under \u201cfair use.\u201d Taylor writes that \u201c[b]y providing commentary over the gameplay, they can create a new, transformative work from the original.\u201d [8] at *270. Making money off of a Let\u2019s Play wouldn\u2019t automatically preclude its \u201ctransformative\u201d nature. Id.<\/u> at *270-71. Say, through YouTube advertising revenue generated by users registered as \u201ccontent partners.\u201d [7] at *15 n.1.<\/p>\n

Like major eSports events, from the gaming industry\u2019s perspective, the publicity generated from a well-watched Let\u2019s Play may be what matters most. In theory, watching someone else\u2019s play-through of a game could motivate viewers to buy it and make their own gameplay choices. Just as easily, however, some Let\u2019s Plays can remove any incentive to purchase games at all. If you\u2019d rather watch a game for its plot than strategize an attack, there are \u201cNo Commentary\u201d versions that can immerse you in a game\u2019s atmosphere \u2014 sans the voiceover that could make a video a legally cognizable \u201ctransformative\u201d work to begin with.<\/p>\n

At the moment, if you\u2019re someone uploading game walkthroughs or reviews to your streaming site of preference, you may not necessarily face a DMCA takedown any time soon. Let\u2019s Plays seem to be part of an odd breaking ground in fair use, where cases like Lenz v. Universal Music Corp.<\/u> could work in their favor in the near future. The Ninth Circuit has now held that someone (or something) on the copyright holder\u2019s end must take a long enough look at a Let\u2019s Play to see that it clearly isn\u2019t fair use before trying to get it taken down. [7] at *11. Factors to consider would be the content\u2019s \u201cpurpose and character,\u201d \u201cnature of the copyrighted work,\u201d how much of the copyrighted content is used, and the content\u2019s effect on the \u201cpotential market for or value of the copyrighted work.\u201d Id.<\/u> at *4 (quoting 17 U.S.C. \u00a7 107).<\/p>\n

It isn\u2019t 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\u2019t fall under \u201cfair use.\u201d Conversely, the outcome wouldn\u2019t likely fare well for videos in the strictly \u201cNo Commentary\u201d category \u2014 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.<\/p>\n

So, are Let\u2019s Plays illegal? Not necessarily. Are they immune to DMCA takedowns? The answer is, as it often seems to be, \u201cIt depends.\u201d Let\u2019s Plays fans can at least reasonably rest assured that their favorite streams aren\u2019t destined for the digital chopping block.<\/p>\n

 <\/p>\n

– – – – –<\/p>\n

 <\/p>\n

[1] Paul Tassi, League of Legends Finals Sells Out LA\u2019s Staples Center In An Hour<\/u>, 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\/.<\/p>\n

 <\/p>\n

[2] Leah Jackson, Looking Back on the League of Legends Championship Series Grand Finals<\/u>, IGN (Oct. 7, 2013), http:\/\/www.ign.com\/articles\/2013\/10\/07\/looking-back-on-the-league-of-legends-championship-series-grand-finals.<\/p>\n

 <\/p>\n

[3] Twitch Interactive, Inc., Twitch<\/u>, Twitch.tv, http:\/\/www.twitch.tv\/, (last visited Oct. 7, 2015).<\/p>\n

 <\/p>\n

[4] Google, YouTube Gaming<\/u>, YouTube.com, https:\/\/gaming.youtube.com\/, (last visited Oct. 7, 2015).<\/p>\n

 <\/p>\n

[5] Google, The Walking Dead: Season Two – YouTube Gaming<\/u>, YouTube.com, https:\/\/gaming.youtube.com\/game\/UCEkYfSNSzjCWL1HnrQYD0vA#tab=3, (last visited Oct. 7, 2015).<\/p>\n

 <\/p>\n

[6] PBS Game\/Show, Are Let\u2019s Play Videos Illegal? | Game\/Show | PBS Digital Studios<\/u>, YouTube.com, https:\/\/www.youtube.com\/watch?v=28NZxeViHZY, (last visited Oct. 7, 2015).<\/p>\n

 <\/p>\n

[7] Lenz v. Universal Music Corp.<\/u>, No. 13-16106, 2015 WL 5315388 (9th Cir. 2015).<\/p>\n

 <\/p>\n

[8] Ivan O. Taylor Jr., Note, Video Games, Fair Use and the Internet: The Plight of the Let\u2019s Play<\/u>, 2015 U. Ill. J.L. Tech. & Pol\u2019y. 247 (Spring 2015).<\/p>\n","protected":false},"excerpt":{"rendered":"

Game On: Fair Play and Fair Use By Nicole Prieto, Staff Writer It was October 2013 when everyone gathered in my dorm\u2019s common area for the big game. If memory serves rights, a projector was set up alongside someone\u2019s laptop and speakers. The room was abuzz with talk on who\u2019d [\u2026] <\/p>\n

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