Yep, I heard of it and I was just going to make a blog post about it, ha ha! So I’ll do it here.

First I gotta do the obligatory “I’m not a lawyer” statement that people shouldn’t take my words as factual since I’m just giving my thoughts on the matter.

I’m seeing some panic over this in that LPers are worried that their Nintendo videos will get taken down, but that could not be further from the truth right now because Nintendo said they would not remove the videos or block them like a some other companies would because they know people like sharing their experiences and tips with others. So it doesn’t sound like people have to worry about their channels imploding for making videos with Nintendo content in them right now. That is a very nice move from Nintendo because it still lets people make videos of their stuff (which is free advertisement for them).

However, if you monetize videos (get paid for making them) and Nintendo claims them, the money will go to them, not you. So some partners may experience a pay cut. That’s not really a big deal in my opinion because for the longest time no one could monetize their game videos at all. We just did it for fun and I’d still do that even if I made nothing. In fact, I did that for years before I partnered with Machinima, lol! Anyway, even if you don’t monetize Nintendo-content videos, they may still claim them. Even networks and network partners who have the rights to upload and monetize their game content via agreements between networks and game companies, videos are apparently still getting claimed on their channels. XD Content ID is simply way too sensitive and doesn’t check over whether or not someone has the rights to upload something. So it’s something that needs to be sorted out some day in general.

How this works is they basically submit stuff in Youtube’s Content ID program which auto-detects matching videos on the site with the content they submitted for them to claim them for monetization… automatically. It takes the guesswork out of searching out channels or videos to an extent. But the issue with content ID is that it sometimes misdetects videos and companies falsely claim them which is unfortunately up to the video uploader to sort out, not the claimer. As a matter of fact, I got a Content ID match by IGN about a year and a half ago on one of my Donkey Kong Jungle Beat videos for a content match of a video they uploaded AFTER I uploaded mine. XD Needless to say I successfully disputed it. Given that I believe walkthrough videos and many other kinds of game videos are fair use in general (Of which I’ll get into soon), I would consider claims on them a mistake. In order to release a claim on a video from a company, you’d have to file a counter claim and wait for it to finish which is a shaky subject due to how complex copyright law is.

But of course there’s a chance Nintendo may someday change their mind and block or remove videos Content ID’d, likely putting strikes on people’s accounts and/or getting them banned. That’s my real concern here. Like, right now they don’t have a problem with them staying up so all is good, but there’s always a chance they might later. So if one would ask me what to do if you got hit with a claim on walkthrough, Let’s Play or Game Review videos with Nintendo’s content, because of that possibility of them changing their mind, I would probably say to counter it, especially if you do commentary in your WT/LP videos. See, once a video is claimed, the claimer has great control over it and your fate anytime. Copyright is meant to make sure the rights of creators are upheld, but there’s exceptions to be able to use copyrighted material in the form of “Fair Use”.

I know that article is a long read, so I’ll provide an example and some key points on what parts of fair use law I think applies. You might have heard of “Unauthorized Player’s Guides” which are basically walkthrough books to help you through a game or games. “Unauthorized” means they were not granted permission by the creator of the game(s) they made the guide for, commercial use (for profit) or not. However, guides like these can be made because they are not meant to copy games, but to help people through them and even explain the game’s storyline. So they fall under the “teaching” category of fair use. That is something walkthrough videos also do, maybe even better in some cases because you can watch someone do something successfully and they can explain how they do it. By watching, you can then imitate the moves yourself to progress.

The next thing is that you cannot play a game by reading a guide on a game, obviously, lol! The same goes with watching a person play a game because watching is not playing. If a person was uploading licensed music like stuff by by Metallica or movies like Titanic, that would definitely be copyright infringement because people can literally get the experience of listening to/watching them that you would only normally get if you paid for it, for free. Games are something you must be able to play yourself in order to be able to experience what they are and you can’t do it through videos or guides.

Next is the commentary thing. Commentary makes a huge difference in whether or not something is fair use because of a bunch of factors. There’s the teaching/ education aspect of telling people how to do stuff in your commentary as explained above, in reviews you are telling people what you like or don’t like about something and you are telling things how they are like a reporter. This is always going to be allowed because of free speech. People always have to be able to talk about whatever they want with whoever they want otherwise the copyright system could be used for censorship.

People think that if something is commercialized the fair use clause gets voided because it’s more for personal gain then not and it’s supposedly damaging to the creator, but I highly disagree. If you think news reporters don’t get paid for what they do, you better think again, lol! Without the money, many productions wouldn’t be as high of quality or would cease to exist. A lot of gamers who make WT/LP/Review videos use their now-extra funds to get more stuff to make videos on which means more sales for the companies anyway. Plus the content will get more people to buy a company’s stuff through the publicity. Word of mouth is the best advertisement after all. So if one were to say that game guides or videos would “cause damages” a company I’d call it a ludicrous claim.

I’m aware that it’s up to the copyright holder in current copyright law to say who can or can’t advertise, but copyright law is very dated and preceded the internet. That’s why people are hoping for some copyright reform because copyright is actually hindering creators from making more money than they can now, hindering advancement and even hindering artistic possibility. But that’s another post.

But speaking of art, artistic expression is also something that is a factor. “Transformative works” is a thing where a person takes one thing and turns it onto another. Youtube pooping game footage would fall under this because of parody. Heck, game walkthroughs might be transformative as well because watching/reading a game walkthroughs is clearly different than playing a game yourself. I think of video games like a medium of sorts nowadays since I have seen what awesome things people can do with them. If Gibson (a guitar manufacturer) said that the music made on their instruments was theirs and claimed them as such, would anyone really think it’s theirs when it’s clearly someone else’s composition?

In my research, I have also heard mixed stances by companies on game videos. Some say that people cannot monetize them because it’s copying the game, others say they can because they aren’t claiming they made it and are just helping out. But in reality, it’s entirely up to the courts to decide whether or not something is infringing. So anyone can say whatever they want (including myself) but it’s not actually up to us, lol! Given that the legality if game walkthroughs, reviews, etc… have never been tried in court and likely never will be, no one knows for sure.

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As stated above, I’m not a lawyer, so what if I’m wrong about this and you counter a copyright claim that is valid? Like, what are the repercussions to you?

Well, there’s a chance your account could get banned for filing false counterclaims and get strikes on your account for doing so, though false claims to begin with can get an account banned. So Nintendo would be at just as much risk if they get crazy or lazy with what they claim through content ID.

Also note that most companies don’t check over counterclaims because they just don’t have the time to go through them all and it wouldn’t likely be worth even more time fighting a battle of beliefs because both sides would think they are right.

There’s also a chance you could get sued. Though that chance exists whether you counter a claim or not because they don’t have to claim your video first before they serve you court papers. Though in all honesty, that probably wouldn’t happen. I have never seen or heard of a case where a person uploaded a video on a video game and got sued for it. I have heard of big companies butting heads over music, show or movie uploads, but not a company vs a regular user and his/her video game videos. If you or anyone knows of one, please tell me about it as I’m extremely interested in the legal stance of video game videos.

The reason for this is because it would cost far more to take you to court than to just let you counter the claim. It would literally cost them thousands in legal fees vs the chump change they would get from winning the case. That is… IF they even won it because as stated before, it has not been tried in court so no one knows which side would have the higher chance of winning.

There’s also the fact that they can’t do any “cruel and unusual” punishment that doesn’t fit the crime despite that threat of $250k per infringement because no regular citizen who makes indy videos could ever pay off one infringement at full in their lifetime. So that would most certainly be cruel.

Them suing a fan of theirs would also be terrible publicity for them and therefor a loss of sales because it would make people think they could go after them as well. So some people would take down their videos, reviews and guides out of fear which would lead to a loss of sales because there’s less discussion about said company’s products.

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I think I covered all the possibilities here so I’m going to conclude this post. I might edit it if I have more info, forgot to add in something or make a followup post though.