Legally, Nintendo owns any reproduction of their characters’ likenesses. Copyright law is incredibly confusing, convoluted and different around the world. Fan art, self edited trailers, Let’s Play videos and everything in between all infringe on Nintendo’s copyrights in certain countries and to varying degrees.
Copyright law has large grey areas and differs in the US, UK and other countries where content might be created, distributed or hosted. In a connected world, with so much reliance on the world wide web, it’s incredibly difficult to keep track of copyright, let alone protect your property.
For large companies like Nintendo, entrenched in more traditional ways of thinking, this is proving a difficult situation to deal with. Their recent partnership with YouTube is making it easier for them claim ownership but the issue isn’t being handled particularly well. They’ve registered their content to the YouTube database so that it’s flagged when certain video or audio elements match what Nintendo has registered. This is called a Content ID Match.
When a YouTube video is subject to a Content ID Match, the owner of that match can monetize the video themselves – and the producer of the video cannot. This means that, for example, when we post a trailer for the latest game on our YouTube Channel it is Content ID Matched and any adverts that appear do not pay out to us but to the company who owns the trailer.
The same applies to music used in a video. For example, last year’s Eurogamer Expo TSA Dance video (below) features a Nicki Minaj track and is Content ID Matched by her record company, Universal Music Group. Any adverts that appear belong to UMG (and there’s a little “buy this track” ad permanently embedded on the video’s page). They can also choose to limit the availability of the video so that it doesn’t play on specific devices (like mobile) or in specific countries.
That’s fine, for music videos or even videos that contain predominant elements that are the creative work of someone who is represented by a company. But it is a system that’s open to abuse and error.
I’ve had game trailers flagged as copyright infringements and removed by companies after their PR teams have sent me them and specifically asked that we host them on our own YouTube channel. Many of the videos on our YouTube Channel are Content ID Matched – which is generally fine, we only monetize our videos in extremely rare situations and never make any significant income from them – but I’ve had other websites attempting to claim copyright to videos we’ve created because they have similar videos in their channels. That blocks our ability to monetize until the dispute is settled, by which time the views on that video have peaked and tailed off, making monetization pointless.
For the hundreds of prominent Let’s Play YouTubers, this move poses a more significant problem. Many of them do monetize their videos. Many make a modest income from the hours they spend demonstrating and commentating on games to YouTube viewers. Content ID Matching removes that income, in the first instance, but deeper copyright claims and repeated occurrence can lead to a copyright “strike” against a channel. Three “strikes” and the channel is deleted, removing all of its videos. Obviously, this is a measure to stop people uploading movies and music videos to the service and making money from them. But a videogame Let’s Play is a very different thing.
Yes, these lengthy video series tend to show most or all of a game. But a videogame is not a linear, singular experience. What you see as you play through a videogame is different to what I will see. Often in quite small ways but always different. The commentary on a Let’s Play video also adds a dimension to it that, I believe, makes it created entertainment rather than simple demonstration.
Aside from the limitations this newfound heavy handedness puts on the Let’s Play community, I don’t think it’s very good for Nintendo, either.
YouTube is often the first port of call for someone who wants to know what a videogame looks like – and what it plays like. Official trailers only show so much and one of the thousands of gameplay videos is much more likely to demonstrate a real-world scenario to a potential player. But if the Let’s Play community feels the need to turn away from Nintendo’s games, for fear of recrimination (as some already have) then Nintendo loses all those potential customers who would have had eyes on their product. That’s not to be underestimated, the biggest Let’s Play channels can have hundreds of thousands of subscribers each.
The Let’s Play phenomenon has undoubtedly contributed greatly to the success of many games, from Minecraft to Thomas Was Alone. Restricting what those valuable sources of coverage can show is not only restrictive for them, it’s harmful for large companies like Nintendo. They risk leaving this valuable source of exposure to the smaller indie developers and more savvy publishers that are already well aware of the potential power of a successful Let’s Play and the knock on effect that has on media awareness.