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Nintendo has Illegal Plans for Let's Plays

Not true, as the ISP's do believe they own the internet and act as if they do. What I meant was they could charge you an additional fee every time you make a forum post or send and IM just because you used a bit more of their resources which is exactly what the new law is about. A restricted internet and not making it an open platform.

There's a difference between what people believe and act like, and what they are. 

And if they did that, I wouldn't be their customer anymore. Seriously. I would forego the internet in such a case. It'd give me more time to do other things as it is. Then I would lobby in my local town/county for us to make our own ISP as others have done.

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Apart of the terms of service is agreeing to them being allowed to remove your videos if they wish. Using someones service has different rules than public domain. Just as Facebook could ban you for saying something they don't like. As long as you agreed to them banning you from their service when you signed up they may. It may be accessible easily but websites are not public domain and have different rules. Esspecially if they offer a service like FaceBook or youTube.

You completely ignore the topic of the post. Nintendo's affiliate program is NOT part of Youtube's TOS. Youtube has no part in it.

I suggest you take time to put your thoughts together coherently because every single one of your points is ripped to shreads and has no legal standing. I have yet to see a single valid argument supporting nintendo other than "it's their game" which has been repeatedly been invalidated as any legal defense in copyright law.

Furthermore, your arguments about ISPs and how we use them is so inherently wrong and flawed that it only amounts to uttering nonsense and hopes of spurting into a tangent irrelevant to the topic at hand.

I'm certain you have a point to make somewhere and look forward to seeing it but as it is - you're just wrong.

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The NFL didn't create the sport though, they are a host to allow people to find others to play the sport with.

Not entirely true. The NFL didn't create football - but they created NFL rules (which are NOT the same as rugby or many derivitive copyrighted forms), the equipment (again, not the same), the concept (stadiums, uniforms, cheerleaders), organization, marketing, etc and so on. They do in fact own football in that sense in the same way the NHL owns ice hockey (not same as Olympic ice hockey, which is a separate copyrighted rule set), and so on for every sport on earth, each having their own separate and derivative forms each with their own copyrighted rule sets and concepts.

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You don't pay adobe every time you publish a video using their software for edits and pre-made effects.

You don't pay FL Studio every time you publish a video using their sound editing software (just an example, don't use FL for youtube..)

 

You do pay if you use specific owned fonts and images.

You do pay if you use specific, unedited songs.

 

What's the difference? 

 

The first set are examples of dynamic creations that wouldn't exist without the user.

The second are simply being used by the user.

 

Let's Plays are a dynamic creation and should be classified as such

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Couple things.

One, I'm really struggling to see how the plan Nintendo plans to enact is illegal, as the OP says. I really can't figure out how it, in and of itself, is illegal. It seems like a win-win-win, if implemented properly. It remains to be seen how this will all work out because we don't know what the requirements to be eligible for the affiliate program.

It seems to me that what's really being argued here is whether or not Lets Plays are "fair use." That's the real point here. As Wikipedia puts it, "Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship." Lets Plays contain commentary, criticism, teaching, and, to a much lesser extent, parody. Commentary is part of what makes a Lets Play a Lets Play. The player is commenting on what is going on in the game. Every time the player says anything like, "that was stupid," it is criticizing the game. The player, by just playing the game, is teaching someone about how the game looks and plays, and if they explain how some mechanic works, there's an other way. The last one, parody, isn't as much of an example but if you make fun of parts of the game, you could consider that parody.

That said, and what the real issue here is are Lets Play transformative enough to be considered fair use. Is it transformative enough to be considered a "limited use of [the] copyrighted material?" Is a live commentary track over video and audio enough to be transformative? Is the act of playing the game itself transformative? No one is going to play the game the same way as anyone else so in that way you can be transforming the game itself.

I can't really state whether or not Lets Plays are fair use. However, I do think the content creators put enough time and energy into playing, commentating and editing the game and the video that they deserve to be paid a little bit of money. They have their own set of skills in the game, commentating and editing that they apply to each. On the flip side, though, without the copyrighted game they are playing, the video couldn't exists. The game company that holds the copyright and made the game also deserve a little bit of money too, because, lets face it, whether or not Lets Plays are fair use, they are making money off of the game developers copyrighted material. With the plan Nintendo wants to enact, I see it as a win for everybody. Google, Nintendo and the content creators get a bit of money.

Then, that's all ignoring the fact that Nintendo would be making money on advertising they did not have to pay for, essentially double dipping off of the content creator who bought the game and are giving Nintendo free advertising. Does that off-set the fact, from a legal stand point, that the content creator is making money off of a copyrighted material that may or may not be fair use? I don't know.

All that said, I fall more on the content creator's side of the argument. They do enough work on these videos and, in my opinion, transform the work enough to be fair use, thus negating any claim of money from game companies. But, then, I can see the other side too. My heart is with the content creators, but my mind is teetering on the other side of the copyright owner's fence.

I hope that this "Affiliate Program" of Nintendo's is fair for all parties and open to everyone from the TBs and Jessie Cox's of the world to the guy with only a few hundred subscribers. If done right, I feel like this can be a benefit to Nintendo, Google, content creators, and hopefully, eventually, if this play is good and is adopted by the entire games industry, for the whole Lets Play community. Hopefully it isn't just wishful thinking.

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I urge you to retry your argument replacing "Let's Play" with "review". In both instances, keep in mind that they are using exactly the same game footage. By that metric, both hold exactly the same standing in Nintendo's claim to ownership.

Now consider that the Let's Play would contain the same criticism and commentary as the review. Ah ha, a review that IS a Let's Play.

Now consider whether or not playing the game is a performance. Keeping the concept of "fair use" aside. Look at it purely as playing the game. If an NFL player has copyright over how he plays football, why doesn't a gamer?

Now let's assume that Nintendo assets and the Let's player's changes have equal bearing. A 50/50 split. We are faced with who claims ownership over the final product - the Let's Play.

Whoever owns the Let's Play owns the copyright of that video.

You are the first to present a logical argument, a reasoning for Nintendo's motives but they are inherently flawed as they cannot explain why Andy Warhol's Campbell Soup paintings are ok but Let's Plays aren't.

 

This isn't about fair use. This is about copyright ownership over gameplay, the right to monetize it, and the legal precedent of attribution fr artistic means and expression.

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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.

No they actually do. 

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The title and OP content has to be one of the most trolling I've seen in a long time. I'll post a comment I posted elsewhere and add a new example that might make sense.

 

The only thing that was prohibited was the video publisher making ad revenue when using their material. This is not new, lots of companies do it and I can understand why. This type of measure is mostly to stop spammers who may simply copy or post content (Trailers, Events etc) without any kind of unique input and try to claim ad revenue, that type of thing ain't right to me but unfortunately when Nintendo (and other companies) stop all publishers from making revenue it also affects the genuine content makers from making money.

Nintendo have now come forward with a solution for the genuine content makers so that they can share their content AND earn a share of the revenue, its a GOOD thing that has been made to benefit genuine publishers. So in summery

- Genuine publishers can now earn revenue
- Spammers/Copycats don't earn ANYTHING

I'm happy with that. In my opinion more companys should do this, simply to get rid of the shear amount of spam videos (with ads) on Youtube.

 

 

So according to the OP, if someone was to COPY one of of Linus's videos and make a minor edit then they would to be able to make money from it, they could even get more views and earn more money than Linus, you think Linus would be HAPPY with that? That someone was leeching off his work and making money? NO, and other companies don't like it either. You also call it illegal as if Nintendo is the only company to ever to do this which is wrong, they are simply one of the few to be put in the spotlight for taking the measure (Which will soon be fixed to allow real makers to earn revenue) trust me there are many many companies who have such a measure, some don't let you earn revenue whereas other remove the video outright.

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No they actually do. 

If you're strictly talking about what can and can't be copyrighted, @GingerbreadPK is right in that all you own the rights to is the commentary. However, it is on a game by game basis on whether or not the lets player has permission to upload the video as determined by the game developer. In that way, you're right. To blanket statement that no lets player has the right to upload footage of any given game is just flat out wrong.

 

In respose to @GamerDad, I'm having a hard time seeing where you're coming from. It seems to me that we're arguing the same basic point. In order to copyright a work, it has to hit a "threshold of originality, which is pretty much the same requirements for what constitutes "fair use." They're almost the same thing. What the difference is, I really couldn't find a concrete answer because, if the way you determine fair use is the same as what determines if something is copyrightable, what's the difference?  How I think they're different is, fair use is the fall back plan and requires less change of the original work than a copyright would need. That's only my understanding so I could be wrong, but that's how I'm interpreting it. I'd love to hear someone elses take that knows more on the subject than I do.

 

What we're both arguing about is who has the right upload and earn money from the video. Both sides have legitimate claims to make money on the video. The game developer has a claim because the lets player is using the content of their game. The lets player has a claim because of their original commentary track and all the work of editing and uploading the video. That's why I believe that what Nintendo wants to do is win-win and a good compromise for all involved.

 

To address your post more directly, if I'm being blunt, I'm not seeing where your argument is any different or more valid than mine is. And to take it one step further, I feel like you really have no idea what you're talking about. I have never seen anywhere that says you can copyright how you play football, or any game for that matter. Also, if it is determined that both parties contribute 50% to the video, there is no way of telling who owns the Lets Play because it's a 50/50 split! I don't see a single counter-argument in your post. Just rambling using relevant words.

 

Does that last paragraph totally discredit me? Probably. Should it? Maybe. Please, I would love to understand the argument you're making but I just can't see what the argument is the way you've been stating it. I'd love to have a debat with you but I'm not seeing any couter-points to couter-argue

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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 disagree on this on a number of fronts. And if anything, we should also be looking at the nature of these companies and how they do business. Assumptions won't do us good as much as it has damaged them.

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I'm pretty eh when it comes to Let's Play type videos. On one hand, I am subbed to some gaming channels that entertain me, on the other, I don't believe one should simply get paid for doing what everyone did as a kid - play a video game whilst talking. Gameplay footage isn't unique no matter how many times you try to justify it is. Different play styles, but not unique in the slightest. What makes a Let's Play is the actual commentary. That is the only legitimate thing the uploader of the LP owns. Their voice/personality. Anything else is simply someone else's work they uploaded.

 

If it's for fun, I see no problem at all. If the sole intention is to make money, it's a slap in the face of people who actually produce original content. Now if you happen to make money because it became popular, that's different in my eyes because you didn't intend to capitalize off someone else. There is the "it's free advertisement, Mooshi!!!!111!0ne0ne0ne!11" argument, while yes, I agree with that statement. However, let me reiterate that Let's Plays are simply a recording of things many kids did for fun. It's not a legitimate form of original content. These are people who are talking over video game footage. Don't forget that simple fact.

 

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This is also really sad coming from someone like TotalBiscuit. Who only makes those paychecks because he's doing the same thing - talking over someone Else's footage. Being more on the critic side does not make him any better than the average Let's Player nor does his popular status excuse him from reality. Because of the internet, you ARE able to capitalize off someone Else's work by simply throwing your voice over it - something TB does on a regular basis but is too much of a hot shot to realize his content isn't more original than some random person playing Mario Rom hacks. While TB's stuff isn't Nintendo heavy, the concept remains that he is no better. A few decades ago, the thought of making money by talking over a video would have been deemed laughable and TB should be ashamed he is not more humble he is able to even do this.

 

But I guess it's more popular to bad mouth Nintendo these days.

 

Let's plays are the reality tv of video space in terms of value. They take very little talent to make them. Some have stronger personalities, but that's it. Can't believe some have the nerve to feel so entitled just because they open their mouth to make witty comments now and then.

 

 

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Yet not a single one of you is able to explain Andy warhols Campbell Soup paintings and how Campbell can't claim copyright over them.

Not a single person has yet even attempted to explain the legality of that. It is nice to explain Nintendos approach and reasoning over and over again, but that doesn't make it legal.

The lets player has copyright claim over more than his voice over. He has claim to the editing of the video itself (his work), and the skill involved in playing the game.

Nintendo earns it's share in the form of free advertizing, exactly the same way it does in critics reviews. It has no further claim to any revenue.

A successful lets play returns more sales for Nintendo. A poor one yields fewer sales. Exactly the same as a review does.

The footage falls under fair use because the game doesn't work without input. Therefore, the footage cannot exist without a player. That means Nintendo has a claim at best to 50% of the game footage.

The lets play voice over is 50% of the audience draw at worst, giving Nintendo a total presumed claim of less than 25% of the video before accounting for the actual editing of the footage reducing that claim even more. At best , Nintendo can claim 12% of the video MINUS the marketing value of that video and the value of the game itself which the lets player bought.

Logically, this means Nintendo has a claim to nothing.

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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. 

 

This is the same logic ISPs are using in America to double dip. "Hey Netflix, people wouldn't be able to reach you if it wasn't for us so pay us."

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If Nintendo want to live in their bubble, let them live in their bubble.

 

They'll soon change their tune the moment YouTube users start using their subscribers as an influence against them.

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Yet not a single one of you is able to explain Andy warhols Campbell Soup paintings and how Campbell can't claim copyright over them.

Not a single person has yet even attempted to explain the legality of that. It is nice to explain Nintendos approach and reasoning over and over again, but that doesn't make it legal.

The lets player has copyright claim over more than his voice over. He has claim to the editing of the video itself (his work), and the skill involved in playing the game.

Nintendo earns it's share in the form of free advertizing, exactly the same way it does in critics reviews. It has no further claim to any revenue.

A successful lets play returns more sales for Nintendo. A poor one yields fewer sales. Exactly the same as a review does.

The footage falls under fair use because the game doesn't work without input. Therefore, the footage cannot exist without a player. That means Nintendo has a claim at best to 50% of the game footage.

The lets play voice over is 50% of the audience draw at worst, giving Nintendo a total presumed claim of less than 25% of the video before accounting for the actual editing of the footage reducing that claim even more. At best , Nintendo can claim 12% of the video MINUS the marketing value of that video and the value of the game itself which the lets player bought.

Logically, this means Nintendo has a claim to nothing.

 

You are completely missing the point. There is NOTHING illegal about the action Nintendo had taken to put ads on videos which feature any of their content, thousands of companies and I must stress THOUSANDS OF COMPANIES can and they do do it. They have the right under the law and YouTubes own rules to do it if they want to.

 

Your thread title and many of the comments are all "Nintendo this and Nintendo that... Legal.... Illegal blah blah blah" You want a more accurate title? How about "Thousands of companies have Illegal Plans for their copyrighted content".

If you honestly truly think its illegal for companies to do that then please, go to court and see how far you get. I'm guessing not far.

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Lets Plays are the single most boring thing on the internet, who the hell wants to watch someone else play a game, when you can spend the same amount of time actually playing it yourself? 

 

And the 'free advertising' don't make me laugh, people watch a game being played because they want to watch the story without actually buying the game, it's not a review or commentary it's just republishing a book with annotations. You really think you could just straight up copy and paste an entire book with a few annotations and be immune to copyright? or a better example just record yourself reading the entire book but then every so often when something mildly shocking happens just randomly scream, and say 'ahhh ahhh ahhhh I'm so scared', Nintendo can only be within their rights with monetising it or stopping it in that regard.

 

Yes I know the viewing figures from Youtube and Twitch might disagree with me but you really think that the 800k+, 1M+ views convert to even 50k+ or even 10K sales? I doubt it, even if it does the people who did buy it would have likely bought it anyway regardless of if Lets Play existed, cause who want's to play a game when you've already watched the ending?  If you get more info on how the game plays from a Lets Play than a review then the reviews are doing it wrong.

In a few years time everyone who watched it will be 'man I wasted 5-6hrs of my life watching that stupid game', the people who create these Lets Plays have you right taken.

How many views are just because it is to waste time, like how it's exam time right now and people are using any excuse not to revise.

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I don't think Let's Plays should fall under fair use, just like Rifftrax doesn't fall under fair use if they were to upload the video along with their audio.

If Let's Plays are good or bad for the game is a completely other matter though.

 

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.
 

By that logic, I should be allowed to upload the new Hobbit movie to YouTube as long as I do a commentary on it. After all, I am providing a commentary on someone's work, just like Let's Plays are.

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By that logic, I should be allowed to upload the new Hobbit movie to YouTube as long as I do a commentary on it. After all, I am providing a commentary on someone's work, just like Let's Plays are.

And I believe that is perfectly fine (not sure on the legality of it) as long as you don't include the audio. 

I don't believe it's fair to compare video games to movies or music. One requires interaction of the person to complete the experience. The other two only require it to be watched to have the experience. It's different. 

Watching someone play a game isn't the same as playing a game yourself. Watching someone watch a movie (where you watch the movie with them) is effectively the same as watching the movie yourself. Same with listening to music.

Apples to red oranges.

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I saw Mystery Science Theater 3000 brought up as an example of precedent for Let's Plays, but I was under the impression that the guys at MST3K paid some small amount to the creators of those crappy movies before they made commentary over it. I don't know that for a fact, but I would assume so. 

 

Somebody also described Let's Plays as a performance. But doesn't Warner Bros. demand royalties for performances of "Happy Birthday to You"? I do think that's pretty stupid, but it does seem like precedent, somewhat. 

 

Regardless, while I personally think Let's Plays are stupid, I don't really have a problem with their right to exist. Like everybody else here has said, it's basically free advertising. 

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And I believe that is perfectly fine (not sure on the legality of it) as long as you don't include the audio. 

But a Let's Play include the audio as well.

I am talking about uploading the full ~3 (or whatever) hours of The Hobbit to YouTube, and then put a commentary track over it.

 

A lot of games do not require that much interaction. A lot of games are so linear that you can only really play them one way. Some games have a very excessive amount of cut scenes (and during those cut scenes it is EXACTLY like uploading a movie with your commentary). Puzzle games usually becomes extremely boring once you have seen them being solved once. Games like Dear Esther is basically a movie since the only interaction is walking.

 

I honestly don't think it is that far of a stretch to compare the two.

I am not against Let's Plays by the way. I don't watch that many of them myself (I like "Let's Drown Out" which is hosted by Yahtzee and that's basically it) but I can see the appeal and I don't think it is a bad thing (free publicity). I don't think it's fair to say that it's "fair use" just because you add your own commentary track though.

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I am not against Let's Plays by the way. I don't watch that many of them myself (I like "Let's Drown Out" which is hosted by Yahtzee and that's basically it) but I can see the appeal and I don't think it is a bad thing (free publicity). I don't think it's fair to say that it's "fair use" just because you add your own commentary track though.

Well, from my understanding, (IANAL) that's exactly all it takes to allow you to monetize it. At least based on what I know of the copyright laws and fair use. 

And personally, if a law is being considered to either give or take away rights from people (i.e. the right to use X copyrighted material for profitable gain so long as it's a derivative), I would rather have it allow people to make money off the derivative than allow companies to just say "No." to it all and force them to take it down. 

But that's just because I am for more rights for people, and less rights for companies/corporations. Good thing IANAL.

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For my pertinent links to guides, reviews, and anything similar, go here, and look under the spoiler labeled such. A brief history of Unix and it's relation to OS X by Builder.

 

 

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You are completely missing the point. There is NOTHING illegal about the action Nintendo had taken to put ads on videos which feature any of their content, thousands of companies and I must stress THOUSANDS OF COMPANIES can and they do do it. They have the right under the law and YouTubes own rules to do it if they want to.

 

You misunderstand what Nintendo is doing. Nintendo is removing the ads already placed by the Let's Play ILLEGALLY. Simply because Youtube TOS allows it doesn't make it legal. Nintendo then places it's own ads over the Let's Play video they did not produce - ILLEGALLY. You can't arbitrarily place your own ads over Linus' videos. They then are holding the stolen revenue at ransom and bribing the Let's Play creators into an 'affiliate" program in return for SOME of their rightful revenue..

And the 'free advertising' don't make me laugh, people watch a game being played because they want to watch the story without actually buying the game, it's not a review or commentary it's just republishing a book with annotations. You really think you could just straight up copy and paste an entire book with a few annotations and be immune to copyright? or a better example just record yourself reading the entire book but then every so often when something mildly shocking happens just randomly scream, and say 'ahhh ahhh ahhhh I'm so scared', Nintendo can only be within their rights with monetising it or stopping it in that regard.

Don't you dare tell me why I watch a Let's Play. I watch it for the entertainment brought forth from the PLAYER and to watch the PLAYER's SKILL at the game. I watch it for the video editing as well. Don't you dare pretend to know why anyone watches something. You don't have that right.

Your book example is flawed. It is the same as a musician singing a song. You are reading a script written by someone else - true. The author owns the right to that script and you must pay for the right to read it- hence buying the book. To read the book in public is a public performance - same as showing a movie to the public. You must pay for the right to do this, I agree. Why? because the outcome of the script and movie will NEVER change no matter how many times you read or watch it.

HOWEVER, the performer of the book reading owns the copyright of his voice and his acting of the work. This is why you pay a FLAT FEE for the right to perform the work and the right to MAKE UNLIMITED PROFIT from your performance of it. Nintendo is denying those rights illegally.

Your argument is the closest to a valid point I've seen but it only highlights exactly why Nintendo is wrong in its approach.

 

 

Somebody also described Let's Plays as a performance. But doesn't Warner Bros. demand royalties for performances of "Happy Birthday to You"? I do think that's pretty stupid, but it does seem like precedent, somewhat. 

 You're right but you forget that the lyrics to the song a FIXED and never change if you sing those words. A game is instantly unique the moment you play it by virtue of how you play it.

 

But a Let's Play include the audio as well.

I am talking about uploading the full ~3 (or whatever) hours of The Hobbit to YouTube, and then put a commentary track over it.

The difference is doing that shows off 100% of the finished work. There is no difference from the original. A Let's Play can never show 100% of the finished work because it can never show 100% of the game. Playing the game 100 times won't show 100% of the game. It is therefore distinct and unique from the original.

I have yet to see how a Let's Play vs a review with exactly the same game play footage differ to the point that the Let's Play cannot be monetized while the review can. There is still also the artistic merit of the work and not a single argument explaining why Andy Warhol's Campbell Soup can't be copyrighted by Campbell.

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You misunderstand what Nintendo is doing. Nintendo is removing the ads already placed by the Let's Play ILLEGALLY

 

Again you can't say that until a court decides it. There's both precedent in derivative works and fair use as well as fundamental differences so I think it's better to stop the bitter declarations of all caps "LEGAL" or "ILLEGAL"

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It is illegal to remove the ads off of one video to replace them with your own. That isn't even close to being debatable.

it is for the courts to issue injunctions to remove those ads, not Nintendo itself.

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It is illegal to remove the ads off of one video to replace them with your own. That isn't even close to being debatable.

it is for the courts to issue injunctions to remove those ads, not Nintendo itself.

Can you please specify which law Nintendo is breaking?

 

 

 

The difference is doing that shows off 100% of the finished work. There is no difference from the original. A Let's Play can never show 100% of the finished work because it can never show 100% of the game. Playing the game 100 times won't show 100% of the game. It is therefore distinct and unique from the original.

I have yet to see how a Let's Play vs a review with exactly the same game play footage differ to the point that the Let's Play cannot be monetized while the review can. There is still also the artistic merit of the work and not a single argument explaining why Andy Warhol's Campbell Soup can't be copyrighted by Campbell.

But there is a difference. If I add my own commentary then there is a difference between that and the original. You can show 100% of a game as well.

Even if what you said was true, it still wouldn't make any sense because I could just crop the movie, or put a filter on top of it, or mirror it, or something along those lines and it wouldn't be "100% of the finished work". Would it be alright for me to upload the latest Godzilla movie to YouTube if I put a very very slightly green filter over it and recorded a commentary for it? Or maybe if I did a MST3K style silhouette at the bottom of the screen?

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