What is a game playthrough? Is it a recording of a developer's creation, like a bootleg concert video? Or is it a form of personal expression that creates something new? And regardless of which it is, who should be able to make money off it? According to Nintendo, that right belongs to whoever owns the original copyright. Yesterday, gamer and YouTube video maker Zack Scott posted an open letter to Nintendo, complaining that the company had issued Content ID claims against his Let's Play videos, specifically a playthrough of Luigi's Mansion: Dark Moon. That means that Nintendo has the right to run ads off the videos and collect the associated revenue. It also means that Scott and other video makers can't monetize ads themselves.
In a statement to GameFront, Nintendo confirmed the move, saying it was an attempt to make sure that content was being shared in "an appropriate and safe way."
As part of our ongoing push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.
Nintendo's decision was met with consternation from many on YouTube. Scott called the move "backwards," saying that he wouldn't be playing more Nintendo games. "Video games aren't like movies or TV," he wrote. "Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don't need to see it again. When I see a game that someone else is playing, I want to play that game for myself!"
"When I see a game that someone else is playing, I want to play that game for myself!"
Scott's most popular video has over two million views, and Let's Play, walkthrough, or commentary videos have had a huge cultural impact on gaming. Outside YouTube, spectators watch live e-sports like StarCraft or webcasts of single-player games on ad-supported platforms like Twitch.tv; some are listed on official publisher channels, others by players.
YouTube and Nintendo's decision to run ads against Content ID-identified videos isn't necessarily the same as making a copyright claim. YouTube has ultimate control over how to monetize a given video, as long as a content owner hasn't flagged it for removal. Let's Play videos have also long sat on murky ground. YouTube has apparently allowed monetization from Let's Play makers in the past, as long as there's commentary or something else to distinguish it from simple gameplay recording. But that may last only as long as brands aren't partnering with YouTube or enforcing Content ID rights.
"We have chosen not to block people using our intellectual property."
Legally, the question is bigger. In some cases, playing a game would likely be treated like reading a video or listening to a song (or even recording a cover song): the game's rightsholder can control how it's shifted into other formats. But add insightful commentary or criticism, or even recontextualize the game, and players shift closer to fair use, which could provide a defense against claims of copyright infringement.
Somewhat fortunately for Scott and other gamers, Nintendo isn't issuing any takedowns that we're aware of, just bookending videos with ads. In any case, takedown requests seem unlikely: they'd both alienate players and deprive companies of what's often free advertising. But Nintendo's request opens a discussion about how to treat gameplay, both legally and culturally.