— Jessica Gutierrez Alm, Attorney
There is an entire gaming sub-culture developed around watching others play video games. I’m not talking about gathering around the Game Cube in your friend’s basement and passing the only controller. “Let’s Play” videos are game play videos made by players and posted or streamed online. The videos usually include the players’ own running commentary, which typically offers sarcasm, loud noises, bad jokes, profanity, and occasionally helpful tips.
The concept of Let’s Play videos has been around, in various forms, as long as recording devices and screen captures have allowed gameplay documentation. Today, some players make a sizeable living from Let’s Play video ad revenues. Felix Kjellberg, whose YouTube name is PewDiePie, is easily the most well-known Let’s Play vlogger. With over 50 million YouTube subscribers, PewDiePie was named the highest-earning YouTuber in both 2015 and 2016.
Despite their popularity, however, the legality of Let’s Play videos is on shaky ground. Each video features a reproduction of copyright-protected images from a video game. The videos also typically feature the player’s voiceover and a small window showing the player’s reactions (see above example). If not a pure reproduction of copyright-protected material, the videos are at least a derivative work.
Some have argued that Let’s Play videos are protected fair use. Statutory examples of fair use include criticism, comment, news reporting, and a few others. Arguably, the gaming videos may be a form of commentary, as at least some of the videos do include commentary on the copyright-protected images themselves. However, these statutory categories are only examples, and fair use is decided on a case-by-case consideration of six factors. The transformative nature of the videos may weigh in favor of fair use. That is, rather than a video game, Let’s Play videos provide video playback of one user’s gameplay with added commentary. At this point, it is largely unclear whether these videos constitute fair use, and will likely remain so until a court has the opportunity to give guidance.
Whether Let’s Play videos are rampant infringement or protected fair use, video game developers have largely chosen a hands-off response. PewDiePie’s videos provide free advertising for the game developers to 50 million subscribers. The videos give potential players an opportunity to preview gameplay and graphics before purchasing. Because the draw of a video game is in active play, this likely does not take away from the game developers’ bottom lines.
This week, however, one video game developer reminded PewDiePie of the unstable footing on which his vlogging fame rests. A recent PewDiePie video included some racist commentary. Unfortunately, it isn’t PewDiePie’s first misstep of this type. Though this particular incident ruffled the wrong game developer’s feathers. In a series of tweets, a co-founder of Campo Santo—developer of the game Firewatch—condemned PewDiePie’s statements and vowed to file DMCA takedown notices for PewDiePie’s Firewatch videos.
The Firewatch creator stated “I am sick of this child getting more and more chances to make money off of what we make.” In apparent reference to the legalities, he said “[t]here is a bit of leeway you have to have with the internet when [you] wake up every day and make video games. There’s also a breaking point.”
This game developer’s response illustrates developers’ power with respect to the success of Let’s Play videos, and more generally highlights the power afforded copyright holders by the DMCA. The Firewatch creator’s takedown threat was an apparent result of his personal disgust at PewDiePie’s racist remarks, and did not relate to any new discovery of infringement. Like other game developers, Campo Santo was well aware of Let’s Play videos. Instead of using takedown notices to eliminate infringing content, the developer here is using the DMCA to dictate how PewDiePie infringes its content. With the help of DMCA takedown notices, developers like Campo Santo can stand back in acquiescence, striking only when the infringement becomes inconvenient. I wonder if the DMCA drafters anticipated this type of selective enforcement by copyright holders. In a litigation setting, this practice may even raise the possibility of equitable defenses to infringement.