Nintendo has Illegal Plans for Let's Plays

[GamerDad]

 

Remember when Nintendo caused a big fiasco by flagging Let's Plays featuring its games and STEALING the advertising revenue from the content creators on Youtube?

Well, Nintendo is developing an "affiliate" program to share the stolen revenue between itself, Youtube and the content creator.

Look to Andy Warhols painting of a Campbell Soup can and you'll have all the evidence you need to say Nintendo has no claim on a Let's Play whatsoever.

If the issue is to be debated, it is for the courts to issue injunctions to remove the ads, not for Nintendo to arbitrarily and illegally remove those ads (simply because Youtube's TOS allows it, does not make it legal) and illegally place its own ads on content it did not produce. It is for the courts to decide if Nintendo has claim to those revenues and grant the revenue through a lawsuit, not for Nintendo to steal the revenue and have the victim sue to get them back.

The fact Nintendo is looking to split the stolen funds and return a portion of them to the creator clearly demonstrates that the content creator does in fact have a legal right to earn revenue from the Let's Play therefore undermining Nintendo's actions to illegally replace the ads with its own. It only serves to ask one question: Why isn't Nintendo following the law by suing for alleged lost revenues instead of outright stealing and ransom?

Source: http://kotaku.com/nintendo-has-a-plan-to-share-money-with-youtubers-1582170982

[Syntaxvgm]

Doesn't surprise me. The internet is a new frontier. The big companies will win, legal or not. Just roll over and accept it. 

[RelentlessAF]

The only thing the person owns in a Let's Play is their voice track. Other than that the game they are playing isn't theirs and you don't have permission to upload gameplay from their game with the express intent to make money off of it.

[Vitalius]

Doesn't surprise me. The internet is a new frontier. The big companies will win, legal or not. Just roll over and accept it.

I don't usually say this word, but f*** that.

 

The only thing the person owns in a Let's Play is their voice track. Other than that the game they are playing isn't theirs and you don't have permission to upload gameplay from their game with the express intent to make money off of it.

Then you don't understand what is legal. It is a performance through and through. It's effectively free advertisement for a game. At this point, it's basically "Hey, we want you to pay us for advertising our game."

[RelentlessAF]

Then you don't understand what is legal. It is a performance through and through.

The voice over is the performance, the gameplay is not. The game is used as intended as an interactive media and is owned by it's creator. If you used a painting in a play that did not belong to you the person who created the painting has every right to say you cannot use it. Performance or not.

[Syntaxvgm]

The voice over is the performance, the gameplay is not. The game is used as intended as an interactive media and is owned by it's creator. If you used a painting in a play that did not belong to you the person who created the painting has every right to say you cannot use it. Performance or not.

fair use. Commentary and criticism are explicitly protected in the U.S. 

It is illegal to force it. 

If youtube is complicit, idk. 

[RelentlessAF]

fair use. Commentary and criticism are explicitly protected in the U.S. 

It is illegal to force it. 

If youtube is complicit, idk. 

But a Let's Play is not criticism. It's your reaction to what is happening. You aren't reviewing the game just experiencing it. You can share that with anyone you want but not make money off of it. I make Let's Plays myself but I would never monetize them, reviews, yes. Let's plays, no.

[Murdoch]

How are those Wii U sales doing Nintendo?

 

Yeah this is going to help that.

[Syntaxvgm]

But a Let's Play is not criticism. It's your reaction to what is happening. You aren't reviewing the game just experiencing it. You can share that with anyone you want but not make money off of it. I make Let's Plays myself but I would never monetize them, reviews, yes. Let's plays, no.

I don't believe it is banned commercially. It IS commentary, even if its just idiots making noises. However you'll find the DMCA to be very, very grey and blurry. Arguments can be made either way. 

[Vitalius]

The voice over is the performance, the gameplay is not. The game is used as intended as an interactive media and is owned by it's creator. If you used a painting in a play that did not belong to you the person who created the painting has every right to say you cannot use it. Performance or not.

From the Wiki for Fair Use:

 

In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.

"Commentary" Yup. "Criticism" Yup. "Parody" Sometimes. "News Reporting" Sometimes. "Teaching" Sometimes.

Honestly, the only reason Nintendo is even able to do this is because Youtube allows it. Even though it's perfectly legal, they tend to side with the company for no good reason other than "We don't want to deal with it even though it's obviously legal because big companies have lots of lawyers."

So no, the copyright holder isn't required to have a say in whether or not someone can do these things with their property for money.

[Syntaxvgm]

I plain don't understand why Nintendo wants to do something that would discourage the much needed free advertisement they get. 

[Syntaxvgm]

From the Wiki for Fair Use:

 

"Commentary" Yup. "Criticism" Yup. "Parody" Sometimes. "News Reporting" Sometimes. "Teaching" Sometimes.

Honestly, the only reason Nintendo is even able to do this is because Youtube allows it. Even though it's perfectly legal, they tend to side with the company for no good reason other than "We don't want to deal with it even though it's obviously legal because big companies have lots of lawyers."

And that's where it gets hairy. Youtube always bends after that Viacom fiasco. If youtube allows this, and it becomes terms of using the site, then i JUST MIGHT be legal. 

[RelentlessAF]

From the Wiki for Fair Use:

 

"Commentary" Yup. "Criticism" Yup. "Parody" Sometimes. "News Reporting" Sometimes. "Teaching" Sometimes.

Honestly, the only reason Nintendo is even able to do this is because Youtube allows it. Even though it's perfectly legal, they tend to side with the company for no good reason other than "We don't want to deal with it even though it's obviously legal because big companies have lots of lawyers."

So no, the copyright holder isn't required to have a say in whether or not someone can do these things with their property for money.

A Let's Play isn't commentary or Criticism it's just verbally saying what is on your mind at the time. Perfectly legal but you cannot charge for it. If you were playing a game with your friends and you voiced aloud "wow that was cool." should you be allowed to gain revenue for that?

[GamerDad]

The voice over is the performance, the gameplay is not.

 

Why is it illegal? Because a PERFORMANCE of a work (game, film, show, play, song, etc) is NOT copyrighted to the original producer of the work but to the performer of that work. Each performance is UNIQUE and cannot replace or be mistaken for the original. This is the law.

The ASSETS (art, logos, music, models, etc) used in the original work are copyrighted to the producer of the original work. However, they can be used through ATTRIBUTION to produce derivative works that are UNIQUE, and stand independently of the original product on artistic merit. This is the law.

Art is in the eye of the beholder. It does not had to be good and you do not have to like it. The objective fact is the Let's Play, with game footage removed, does hold artistic merit in the form of criticism, reaction and emotional experience of the content producer not to mention any entertainment or "show" put on by that content producer int he form of the Let's Player's character and personality.

The Let's Play therefore is a UNIQUE PERFORMANCE of ATTRIBUTED works producing a UNIQUELY derivative work that Nintendo has no legal or financial claim to.

 

Game PLAY is a performance. it is a demonstration of YOUR UNIQUE SKILL of the game. The game does not code your skill. The game does not code your hand-eye coordination. The game doesn't code your critical thinking, your strategy, your execution, your reaction time, your timing, your ability, capability or capacity to play the game.

None of the above is part of the game - it is wholly brought to the game by the Let's Player himself. All of that, including the voice over of the person consist of a UNQIUE derivative work.

Nintendo only has claim to a still-standing Mario on a platform doing nothing as the counter goes to 0.

Nintendo would lose in an instant in court. It only takes someone to put them in their place.

FYI, the game does not WORK if you don't play it. For that reason alone, any instance of playing a game is INSTANTLY a derivative work that is copyrightable by the PLAYER - not Nintendo.

Hasbro cannot copyright a chess match - only the board itself and the peices that are played with. Do players of chess have to pay royalties to Hasbro? Do players of poker pay royalties? No, because those games don't work without players. End case.

[GamerDad]

A Let's Play isn't commentary or Criticism it's just verbally saying what is on your mind at the time.

That's the definition of commentary!

yes, you have a right to make money off of ANY word you say.

[Vitalius]

A Let's Play isn't commentary or Criticism it's just verbally saying what is on your mind at the time. Perfectly legal but you cannot charge for it. If you were playing a game with your friends and you voiced aloud "wow that was cool." should you be allowed to gain revenue for that?

Yes. Because it's commentary on the material itself.

If I say "this game is awesome and you should play it", then it's Commentary on the game. If I say "This game is terrible and no one should play it, ever", that's Criticism. Most Let's Plays by major channels have those moments in their videos.

If they comment on what's happening on screen, that's commentary.

And yes, it's fine to charge for that (via ad revenue in this case). The point of Copyright law is to prevent someone else from stealing your idea to make money on it. This exception to them exists for a reason. It being an exception to those laws means you can make money off of what you produce using someone else's content so long as it fits those guidelines in some way.

 

com·ment

ˈkämˌent

noun

1.

a verbal or written remark expressing an opinion or reaction.

 

com·men·tar·y

ˈkämənˌterē

noun

an expression of opinions or offering of explanations explanations about an event or situation.

 

a descriptive spoken account (especially on a broadcast) of an event or performance as it happens.

synonyms: narration, description, account, report, review

 

a set of explanatory or critical notes on a text.

 

[RelentlessAF]

Game PLAY is a performance. it is a demonstration of YOUR UNIQUE SKILL of the game. The game does not code your skill. The game does not code your hand-eye coordination. The game doesn't code your critical thinking, your strategy, your execution, your reaction time, your timing, your ability, capability or capacity to play the game.

None of the above is part of the game - it is wholly brought to the game by the Let's Player himself. All of that, including the voice over of the person consist of a UNQIUE derivitive work.

Nintendo only has claim to a still-standing Mario on a platform doing nothing as the counter goes to 0.

Nintendo would lose in an instant in court. It only takes someone to put them in their place.

FYI, the game does not WORK if you don't play it. For that reason alone, any instance of playing a game is INSTANTLY a derivative work that is copyrightable by the PLAYER - not Nintendo.

Hasbro cannot copyright a chess match - only the board itself and the peices that are played with. Do players of chess have to pay royalties to Hasbro? Do players of poker pay royalties? No, because those games don't work without players. End case.

Actually Nintendo would win in court that's not really how it works. Also I'm not saying you should pay them I'm saying you have no right to monetary gain from the Let's Play.

[RelentlessAF]

Yes. Because it's commentary on the material itself.

If I say "this game is awesome and you should play it", then it's Commentary on the game. If I say "This game is terrible and no one should play it, ever", that's Criticism. Most Let's Plays by major channels have those moments in their videos.

If they comment on what's happening on screen, that's commentary.

And yes, it's fine to charge for that (via ad revenue in this case). The point of Copyright law is to prevent someone else from stealing your idea to make money on it. This exception to them exists for a reason. It being an exception to those laws means you can make money off of what you produce using someone else's content so long as it fits those guidelines in some way.

com·ment

ˈkämˌent/Submit

noun

1.

a verbal or written remark expressing an opinion or reaction.

Even so, you would not be able to create said commentary without Nintendo creating the content thus inquiring some sort of monetary gain for themselves. 

[Imaginaerum]

This is funny, there was outrage when Nintendo was preventing monetization and now there's outrage when Nintendo is trying to give at least some of it to whoever is recording their game.

[Syntaxvgm]

Even so, you would not be able to create said commentary without Nintendo creating the content thus inquiring some sort of monetary gain for themselves. 

Yes you bought the game. you are getting the value of playing it. No one else watching does. Just those who also bought it. 

 

[Misanthrope]

Up next: Nintendo decides to inspect their guns:

 

[Syntaxvgm]

This is funny, there was outrage when Nintendo was preventing monetization and now there's outrage when Nintendo is trying to give at least some of it to whoever is recording their game.

Because unless youtube decides to do this on their own, they have no legal right. The have a lot of other issues as a company. They need to check themselves. 

[Misanthrope]

But a Let's Play is not criticism. 

 

That's for a court to decide. But just so you know, there's tons of precedent with little shows like this one:

 

[Vitalius]

Actually Nintendo would win in court that's not really how it works. Also I'm not saying you should pay them I'm saying you have no right to monetary gain from the Let's Play.

 

And based on how it is described, that's incorrect unless you mean it in the form of an opinion or belief. Legally, you have a right to monetary gain from a Let's Play.

Even so, you would not be able to create said commentary without Nintendo creating the content thus inquiring some sort of monetary gain for themselves. 

 

Obviously, but the point is that if you make said commentary, any money you make off that, via ads or whatever, is not Nintendo's to touch. 

This is funny, there was outrage when Nintendo was preventing monetization and now there's outrage when Nintendo is trying to give at least some of it to whoever is recording their game.

Because first they stole it, and now they are trying to make it normal (via a program) to steal money from content creators in general. 

How is this going to affect Twitch? Youtube acquired Twitch. Twitch is largely video game streams. Are streamers next on Nintendo & Youtube's list? 

This is highway robbery in effect. And it's absurd.

[RelentlessAF]

Yes you bought the game. you are getting the value of playing it. No one else watching does. Just those who also bought it. 

I still don't find any reason why I should monetize my Let's Plays, even if I did it will just get claimed. I'm kind of wondering why only Nintendo gets the blame for this, all companies do it. Also what about the music? A lot of people get third party claims due to music and that isn't something that is so easily disputed.