Nintendo ID Claims Youtube LPs

[Kriven]

This is so incredibly ignorant and one-sided I'm not sure spending the time to explain why this is inaccurate would have any affect.

I'm sorry you feel that way, but that's literally all I'm seeing coming from advocates of Nintendo's decision at this point. I haven't seen a single argument in a day and a half that was anything other than that.

Probably because all of the better arguments have already been made. All of the arguments have been made. There has not been a progress in the discussion on this topic at all for about a page. It's the same back and forth again and again. There really isn't anything left to discuss on a moral or legal front, because the topic of legality is cut and dry:

Whether it's legal or not (on the copyright front it's legal, on the trademark front it is not)

One side will say "Yeah, but the commentary and editing, and the fact that they've legally created a new derivative work that doesn't illegally compete with or devalue the original and they are legally obliged to profit from it."

The other side will say "No, because Nintendo made their source material."

And it will be rehashed and rewashed.

The only debate left is whether or not Nintendo will really profit from this, whether it could potentially harm that company, and whether or not this will be a boon to Let's Players because of the potentially for now-authorized Let's Play production without the fear of YouTube striking the account, and whether or not the created potential for audience-grabs with shows which benefit Nintendo will balance out enough to not send some people into the streets.

Unfortunately, nobody is addressing that, because we're all too hung up on our feels to discuss the effects the decision will have. Neither side is budging, neither is producing any debatable point. Nothing mentioned in the past page has been anything but opinion, and not only that, but the same opinion by the same users.

I'm also getting a little tired of hearing people refer to an entire group of content creators as scum.

If I'm totally off base and you lot have a point that doesn't boil down to the exaggerated ballfit I spewed earlier, then you need to start making it better, because that's all I'm seeing.

[Helmo]

50/50 is ludicrous. If anything companies should take 80% if not all, they're the ones who made the damn game, and just because you spent some time thinking up something funny to say and spent the time playing through the game you really aren't entitled to jack shit. Might seem a bit rough, but I don't see how LP's are entitled to making any money off of what somebody else actually made.

[Gwen]

Like I said, not even remotely the same, the companies who make the gear for sports didn't invent the sports they make gear for, they're merely supplying. The athletes make the sport happen.

[Kriven]

Like I said, not even remotely the same, the companies who make the gear for sports didn't invent the sports they make gear for, they're merely supplying. The athletes make the sport happen.

Like how the players make the game happen?

Sports are basically the same game every time. The gist of most of them is like this: two teams, one ball, two goals. It's what the teams do with that ball to get to those goals that makes the game different each and every time, but that isn't enough for most audiences. There are also a pair of men on microphones commenting on and making jokes about the game as it happens.

It's the unique experience that the Let's Play is about, and each gaming experience is definitely different.

[Gwen]

Like I said, not even remotely the same, the companies who make the gear for sports didn't invent the sports they make gear for, they're merely supplying. The athletes make the sport happen.

Like how the players make the game happen?

Sports are basically the same game every time. The gist of most of them is like this: two teams, one ball, two goals. It's what the teams do with that ball to get to those goals that makes the game different each and every time, but that isn't enough for most audiences. There are also a pair of men on microphones commenting on and making jokes about the game as it happens.

It's the unique experience that the Let's Play is about, and each gaming experience is definitely different.

You're really stretching that. The difference, ONCE AGAIN, is that in sports, Players devote their lives to the sport, practicing day in and day out, and the fact they use gear made by other companies is irrelevant, because those companies are paid to supply the NHL, NFL, NBA, MLB, MLS and so on. Furthermore, each game is vastly different from the last, and it's certainly enough for most audiences, there are entire online channels dedicated to cutting out commentators as they're becoming increasingly annoying in most sports. The commentators are mostly their to analyze and keep those watching updated, just as an extra precaution to make sure people know what's going on. Let's Plays are a few people playing through a videogame and cracking jokes while playing it and talking about it. See the difference?
One is people devoting a large part of their lives to something, and as such it's like any other job and they deserve to be paid for their efforts, where as the other is a few friends cracking jokes over a game their playing and screenshooting. That game that they're playing took other people years to make, something that they put their stamp on, something that they playtested themselves, something that they watched unfold before their own eyes. The LP's are just playing the finished product and doing what my friends and I do when playing a game together, bullshit around.
In my mind, there's nothing remotely similar as with sports, players are given tools to play the game with, and put on their own unique performance day in and day out, where as LP's are just playing a finished product that someone else put all the effort into making it a unique experience.

[Koh]

It's the unique experience that the Let's Play is about, and each gaming experience is definitely different.

But no matter how the players go about it, it is STILL the same game, with the same framework, same characters, same story, etc. all of which are copyrighted and rightfully owned by Nintendo. When you Let's Play through the whole thing, you're basically giving all of those factors out for free. The only thing you aren't giving out is the interaction, since that can't be given. This is reason why the money regarding the game belongs to Nintendo.

[puggsoy]

Almost everything in a soccer game is sponsored, isn't it? The ball? The uniforms? The field? Nothing in an LP is sponsored.

Also, when you play a game, you see stuff happen on a screen. When you watch an LP, you also see stuff happen on a screen. The only difference is that someone else is playing it.
However, when you watch a soccer game, you're watching multiple people play it. From a completely different point of view.

Now, if you were watching from a player's point of view, and the broadcasters gave you a ball and a uniform of the same brand, then maybe soccer games wouldn't be allowed to be broadcasted for profit. Because then the only difference would also be that you're not playing.

But that's not how it is. So I think it's a bad comparison.

[Sengir]

Since apparently I have to,

As much as Korean television would like you to believe, playing a video game is not even close to playing a sport. I'm no sports expert, but the legal definition of sports (as used in the case of Noffke v. Bakke) is "[a]n activity involving physical exertion and skill that is governed by a set of rules or customs," and before you attempt to pass button-pressing and joystick-wiggling as "physical exertion". The legal/medical definition for "physical activity" is "any bodily movement produced by the contraction of skeletal muscle that increases energy expenditure above a basal level" (using a controller, typing on a keyboard and flicking your Wii Remote do not consume enough energy to get you from rest to your basal level).

This means Wii Sports and Kinect Sports are indeed legally sports.


However, most games are not sports. Now let's review what a copyright infringement is. Here we see the legal definition.

"As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. "

This means you were wrong in saying they've "legally created a derivative work". They've actually illegally created a derivative work. And they're performing/publicly displaying it. That's already breaking copyright law. Nintendo can sue those making Let's Plays. Did they do that? No. Should they? It'd be too much work and not worth the hassle, especially when Nintendo can make money off of literally every Nintendo Let's Play on YouTube.



Feel free to argue with the United States Government, but I'll warn you that they've not a good reputation.

[Kriven]

Athletes devote their lives to the game.

I really don't see the difference between devoting your life to a physical sport and playing thousands of hours of video games.

But no matter how the players go about it, it is STILL the same game, with the same framework, same characters, same story, etc. all of which are copyrighted and rightfully owned by Nintendo. When you Let's Play through the whole thing, you're basically giving all of those factors out for free. The only thing you aren't giving out is the interaction, since that can't be given. This is reason why the money regarding the game belongs to Nintendo.

I get that. Soccer is still the same game with the same framework and same team positions and same goal. It's still the same.

Interaction is a huge part of the gaming experience. I actually find it ridiculously boring, sometimes infuriating, to watch other people play games because they play it differently from myself. The experiences are very different.

Also, trademark is what you're looking for, not copyright, and that is a legitimate point and really the only one that matters. Whether or not Nintendo made the game is irrelevent because of fair use, which protects Let's Play as review and satire. Trademark laws, however, are different and do not protect Let's Play videos.

Which is a point I've been trying to get across since the very beginning. It doesn't matter what Nintendo made, that's completely irrelevent. What matters is that they own the trademark on the Super Mario title and character, meaning those titles and characters can't be used to sell product without proper license. This is the same law that prohibits LPers from making Let's Plays of fan games featuring Mario.

It doesn't matter who made the ball, is what I'm trying to get at. All that matters is whether or not the ball's logo is being used to sell a product.

---

Since apparently I have to,

As much as Korean television would like you to believe, playing a video game is not even close to playing a sport. I'm no sports expert, but the legal definition of sports (as used in the case of Noffke v. Bakke) is "[a]n activity involving physical exertion and skill that is governed by a set of rules or customs," and before you attempt to pass button-pressing and joystick-wiggling as "physical exertion". The legal/medical definition for "physical activity" is "any bodily movement produced by the contraction of skeletal muscle that increases energy expenditure above a basal level" (using a controller, typing on a keyboard and flicking your Wii Remote do not consume enough energy to get you from rest to your basal level).

This means Wii Sports and Kinect Sports are indeed legally sports.


However, most games are not sports. Now let's review what a copyright infringement is. Here we see the legal definition.

"As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. "

This means you were wrong in saying they've "legally created a derivative work". They've actually illegally created a derivative work. And they're performing/publicly displaying it. That's already breaking copyright law. Nintendo can sue those making Let's Plays. Did they do that? No. Should they? It'd be too much work and not worth the hassle, especially when Nintendo can make money off of literally every Nintendo Let's Play on YouTube.



Feel free to argue with the United States Government, but I'll warn you that they've not a good reputation.

You can legally create a derivative work. You can not legally profit from it. So I'm right when I said they legally created it, but had I said they legally performed it, I would be wrong... but I didn't.

Homage, parody, satire, and review are all exempted by the fair use clause, and Let's Plays fall neatly into all of them.

[Sengir]

You can not legally profit from it.

So then Nintendo is 100% right in taking 100% of the money

[Kriven]

So then Nintendo is 100% right in taking 100% of the money

No, because of the fair use exception I've already mentioned.

[Sengir]

No, because of the fair use exception I've already mentioned.

Luckily for Iwata, Fair Use is not a concrete thing and Let's Players are abusing part 3.

[Kriven]

Luckily for Iwata, Fair Use is not a concrete thing and Let's Players are abusing part 3.

Which enters the sticky realm of how to determine exactly what amount of the video game is being shown.

The programming is not being shown or experienced, so that's a whole portion of the game right there. The next is that no LPer ever has performed every action at every pixel point on the game, which are all actions that lead to the overall amount of a game.

Until a court actually rules that a game's whole is consituted more by the progression from A to B than to do with what can be done within its restrictions and how much of its inner mechanisms are considered, LP videos are, for the most part, fair use media.

The only exceptions I can think of would be if somebody actually set out to perform every action on every pixel of every screen the game has to offer.


Quickly now, while I'm lucid: we've been talking about video games this whole debate, but what of their predecessor? Should Let's Play channels which focus on board games also be disallowed to monetize their videos?

[Sengir]

The programming is not being shown or experienced.

I don't think LP'ers make satirical comments about blanks screens.

Snarkiness aside, you don't need to touch every pixel. The "portion used in relation to the copyrighted work as a whole" can be even 30% and it would be ridiculously high.

[Gwen]

Putting devoting years of your life to playing a sport as a career and trying to say logging a shit ton of hours into a game is absolutely ridiculous. I've put hundreds of hours into many games, that doesn't even begin to compare the sacrifice athletes put on their body.