The case of gaming content on Youtube is an entirely different story, having almost nothing in common with the two previously discussed industries. The main reason for this is the fact that the phenomenon is very recent, having taken off in a major way only a few years ago. Thus, there are no relevant laws nor court precedents to determine what copyright means in this particular case, leaving it subject to interpretation between the developers/publishers, content creators, as well as Youtube, making the copyright issue a very much gray area. Here raise several questions that do not necessarily have a one proper answer thus far.
What elements of a game count as copyrighted material?
Some of them are quite obvious, due to their roots in traditional, non-interactive media: for instance the game’s soundtrack, or the cut-scenes are clearly copyrighted. The problems emerge when it comes to the more interactive elements of the gameplay itself. Taking, for instance, an entire level or a character model from one game and without permission putting it in another is obviously a copyright infringement, but is making a fan video that uses some of them illegal as well? What about pure gameplay footage? Do the producers own the rights to the files, or to the way that they appear on screen, regardless of player input – often crucial to how the game is presented? How does the Fair Use apply to all of this? There seem to be no concrete answers to any of these, leaving the issues mostly open to interpretation – which in the worst case scenario could lead to making the creation of gaming videos virtually impossible.
Can this vary based on differences in genres?
With the recent explosion in popularity of “let’s play” channels which publish commentated playthroughs of games in their entirety, an argument can be made that they can have a very different impact on various types of games.
As more and more attention tends to paid to the narrative aspect of games rather than pure gameplay, many recent productions have become more like interactive movies with only very basic level of player input. One might argue that in case of such productions, watching a let’s play can provide almost exactly the same experience as actually playing the game, thus potentially “stealing” the sales from its publisher: as the viewers are already satisfied with the game after watching it, they see not reason to buy and play it themselves. Such concerns have recently been raised by the developers of a somber indie game (or perhaps more appropriately, “interactive experience”) That Dragon, Cancer, causing a large amount of debate within the gaming community. In this case, stricter copyright policies could probably be beneficial for the publishers – but on the other hand, if a game can be experienced just as well without actually playing it, maybe it should not have been created as this kind of medium in the first place – thus shifting the blame back to the developers.
Competitive multiplayer productions, on the other hand, are likely to benefit from such videos. The way in which they play out is not determined by a carefully crafted narrative, but entirely up to the players’ individual skill and decisions on a match-by-match basis. Thus, every playthrough can be entirely unique, serving more as an encouragement for playing the game, and not a substitute. This point is emphasized by looking beyond one-man “let’s play” channels, and into huge Esports leagues that operate at a loss, serving primarily as an advertisement for the game itself.
Is the content primarily about the game, or the personality?
This is perhaps the most difficult one, as strong cases for both approaches can be made. Large numbers of viewers who desperately search for footage of a new game the minute it releases are obviously more concerned about the production and not the player. Some “let’s play” channels, however, have a very large, loyal following of viewers who consume everything they produce, regardless of the game being played – treating their videos more like podcasts loosesly based around gaming footage, thus coming back clearly for the personality. This distinction makes the Fair Use question even more complicated. While some channels could probably keep going with just the lazy raw footage (probably best compared to previously discussed “reaction” videos), others are all about the commentary, making a strong case for the transformative nature of their content.
This point is especially relevant not only to gaming videos, but to a very large portion of Youtube content in general, be it Minecraft let’s plays, Game of Thrones theories, cooking how-tos, or teenage girls’ vlogs. As such productions are predominantly amateur passion projects, they become centered around the creator’s personality much more than traditional media. This makes the distinction between the producer and the product very blurry, potentially making it problematic from the law’s standpoint, since the question of what is really the central point of given video becomes much less obvious.
How to approach it, then?
Various copyright holders in the gaming industry come up with very different answers to these questions, and consequently with different approaches to their games being played on Youtube. Interestingly, here the major line of difference is not AAA/indie as it was in music, but rather the West/East. Western publishers have for the most part grown to value the free publicity more than potential “lost” sales, either not interfering with the Youtube activity, or actively endorsing it – for instance by explicitly allowing such videos to be created in the EULA. Asian publishers, on the other hand, are still very hostile toward Youtube. They either aggressively take down all fan footage of their productions, or come up with draconian “deals” aimed at fans of their productions, in an attempt to make as much of a quick buck from the trend as they can. Such strategies, however, tend to backfire quite badly, making those publishers less and less relevant on the platform.
Whose Copyright Is It Anyway? 