YouTube has decided to crack down on allegedly infringing content, flagging a number of videos that contain copyrighted music, movies, and video game content. One particular type are Let’s Play videos, where a user records an entire play through of a video game, usually with voice-over comments edited into the videos. One only needs to search “Let’s Play” in YouTube to find thousands of these videos. Although they certainly can be considered infringing a number of copyrights and license agreements, this article will consider whether Let’s Play videos are protected by the fair use defense.
§107 of the 1976 Copyright Act (Act) discusses fair use with four factors to consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The Act gives some examples of fair use including criticism, comment, news reporting, teaching, scholarship, and research.
The first factor’s main inquiry is whether and to what extent the new work is “transformative.” While the literal video game content in Let’s Play videos remain unchanged, most videos have whoever is playing the game talking about it. This can include critiquing or reviewing the game, giving hints on how to beat a difficult section, or the player’s reaction to parts of the game. An analysis and critique of a course manual was considered transformative enough to constitute fair use. Similarly, the commentaries and observations heard throughout Let’s Play videos should be transformative as well. Further, most Let’s Play games are not for profit, though some do take in revenue from advertising. Commercial use tends to weigh against fair use, while good faith and fair dealing tends to weigh for fair use. Therefore, this factor should favor creators of Let’s Play videos.
The next factor is the nature of the copyrighted work. Some considerations include whether the work is fact or fiction, and whether it is published or unpublished. Fictional works as well as unpublished works weigh against fair use. With regard to Let’s Play videos, the video game content is obviously fictional, but also already published. The games tend to be available online or in stores for at least a few days before the Let’s Play videos are created, since the player has to spend six to eight hours minimum completing the game, and then several hours editing the Let’s Play video before uploading. Hence, this factor is split and not much help in determining whether Let’s Play videos constitute fair use.
The third factor typically asks whether the alleged infringer took “the heart” of the copyrighted work. As stated above, Let’s Play videos usually consist of a single play through of a video game. While some might argue that this constitutes the heart of a video game, there are a number of reasons against this. First, actively playing a game compared to passively watching a game are two different activities, and video games are designed to be played. Thus, the heart should involve playing, rather than watching a game. To complement this, every play through of a game will be different, especially if the game is a “sandbox” like Skyrim or Grand Theft Auto. Hence, one play through of a game cannot be considered the heart if there are an infinite number of other ways to complete the game. Third, many games also contain multiplayer modes, including either competitive matches or cooperative “horde modes” (like Gears of War or Call of Duty Zombies), so a play through of just the single player campaign only scratches the surface of many games. For instance, games like Halo or Battlefield tend to have lackluster campaigns, but are well-known for their vast, expansive multiplayer modes. Thus, this factor weighs in favor of the creators of Let’s Play videos.
The last factor is whether the infringing work materially impairs the marketability of the copyrighted work, i.e. does the infringing work replace the need for the original. Let’s Play videos should not replace the need for the original video game, for much of the same reasons why such videos do not constitute “the heart” of the videogame being played. As stated earlier, playing a game and watching a game are distinct. Watching a game lacks the ability to immerse and interact with a game’s world. Thus, someone watching a Let’s Play video will not feel they have “played” the game and skip buying it. Further, Let’s Play videos can actually increase a videogame’s marketability as a way to promote and advertise the game. A number of major developers, including Ubisoft and Valve, have even encouraged Let’s Play videos. Therefore, this factor weighs in favor of the creators of Let’s Play videos.
A majority of the fair use factors weigh in favor of allowing Let’s Play videos and thus, they should be protected. YouTube should change its policies regarding these videos, or it might have a difficult lawsuit to deal with.
 Mellisa Tolentino, YouTube Cracks Down on Let’s Play Videos for Copyright Claims, Silicon Angle (December 12, 2013), http://siliconangle.com/blog/2013/12/12/youtube-cracks-down-on-lets-play-videos-for-copyright-claims/.
 Copyright Act, 17 U.S.C. §107 (1976).
 Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
 NXIVM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004).
 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
 Campbell v Acuff-Rose Music.
 Sandbox – “Games that have an open gameplay structure that allows you to ‘play’ in the world and choose to participate in the story at your own pace.” Sandbox, Giant Bomb (Sept. 24, 2013), http://www.giantbomb.com/sandbox/3015-453/.
 Horde Mode – “[A] type of multiplayer game mode in which players battle co-operatively against increasingly difficult waves of computer-controlled enemies.” Horde Mode (Concept), Giant Bomb (Nov. 9, 2013), http://www.giantbomb.com/horde-mode/3015-3021/.
 Campbell v Acuff-Rose Music.
 Robert Stoneback, Ubisoft, Other Devs, Dismissing Recent YouTube Content Claims, The Escapist Magazine (December 13, 2013), http://www.escapistmagazine.com/news/view/130515-Ubisoft-Other-Devs-Dismissing-Recent-YouTube-Content-Claims.
Craig Drachtman, J.D. Candidate 2015, Rutgers School of Law – Newark
Copyright 2014 Craig Drachtman