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Correct, I agree. Just making clear that a game isn’t merely an “instrument” as Gil suggested, its an original, protectable audio-visual work, with a variety of copyrightable elements. You know, unlike a tuba or a clarinet.

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo? 1 reply

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Right, it would come down to how closely these videos mirror “educational works” deemed fair use in the past. That said, each fair use analysis is differently. Surely, you could create the same walkthrough using a mere few stills of the game, which would be a much smaller taking. And because the video creator would be taking more than is necessary for his fair purpose, the fair use defense would fail.

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo?

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Agreed! They’d have a strong argument.

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo?

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and if it’s fair use, the derivative work could be monetized, just like any other fair use work can be sold (like the parodies found on SNL, for example)

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo? 3 recommends

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THANK you! People sure don’t understand how IP law works on this board.

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo? 1 reply

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The digital code and artistic assets of the game are copyrightable, point blank period. Thats the law. Otherwise people could pirate games freely.

The question of whether the video of one playthrough of a game warrants some additional level of copyright that the player owns is a novel one. However, even if it did, that video would still be a derivative work based on copyrighted assets of the underlying work (the game), which still couldnt be distributed without the original copyright holder’s permission, unless we consider it a “fair use,” which is an entirely different assessment.

Videos of gameplay for the purpose of a review are long considered fair use, just the same as vidoe clips or pictures from a movie are fair use when part of a review. A review, a commentary and criticism of a copyrighted work, is one of the clearest forms of fair use because it is transformative and often at the center of what the first amendment protects.

That said, videos of gameplay for the purpose of a walkthrough is a bit less clear when it comes to fair use. There isn’t any critique or commentary about the work itself, its simply describing the work. Then again, we often extend fair use exceptions to derivative works that are of an educational nature. This is where the debate lies. So people on here who are saying Nintendo can’t make a complaint about these videos are simply way off. It is absolutely copyright infringement; its just a question of whether it defensible because of fair use.

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo? 1 recommend

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the digital code and artistic assets of the game are copyrightable, point blank period. Thats the law. Otherwise people could pirate games freely.

The question of whether the video of one playthrough of a game warrants some additional level of copyright that the player owns is a novel one. However, even if it did, that video would still be a derivative work based on copyrighted assets of the underlying work (the game), which still couldnt be distributed without the original copyright holder’s permission, unless we consider it a “fair use,” which is an entirely different assessment.

Lego blocks are not copyrightable expression. A nike shoe’s design may have some copyrightable elements depending how artistic it is and whether the design is functional or purely visual, but the protection would be far thinner than that of an original audio-visual work like a video game.

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo? 3 replies

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Review is commentary on the underlying work, which is a fair use, so long as the amount taken doesnt go beyond what is necessary to make the commentary.

A video walkthrough has less “commentary” or “criticism” on the original work; it just kind of recreates it with a voice-over track that explains whats happening. So the fair use argument is trickier.

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo?

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This is nonsense and you are very confused about how IP law works. The character of Mario is owned by Nintendo. So is the code and artistic assets they create in their games. Recreating these in any way without their permission is a copyright infringement, the only defense to which would be fair use, so the question is whether this is a fair use (which i think is a close call).

“A gameplay vid is now different than a memory” — okay, so what if I record Iron Man 3 while I watch it in the the theaters. Surely that’s just a memory too, right? I’m memorializing my memory of watching the movie. But no, of course that is a copyright infringement, just like illegally copying a video game it.

The difference here though is that, yes, there is something original created when you play the game, as every playthrough is a bit different. But even if we assume the visual experience of your playthrough warrants its own copyrightable protection, a video thereof would still be a derivative work based on that incorporate the copyrighted assets of the underlying work (the game). And under copyright law, you still couldnt distribute such a derivative work without the original copyright holder’s permission, unless we consider it a “fair use,” which is an entirely different assessment (and, again, a close one IMHO)

9 days ago on Who owns a 'Luigi's Mansion' walkthrough video, the player or Nintendo? 3 replies 3 recommends

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This!

16 days ago on Landlords beware: Airbnb is booming in big cities, but many users run legal risks

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Also, many lease agreements either prohibit subleases, or require a landlords approval before any subleases can be carried out by the tenant. This ensures all tenants go through the same screening process that landlord or management company require (which in turn ensures the safety and happiness of the tenants of the building). Airbnb sidesteps this clause and its purpose. And if the tenant didnt want to agree to those terms, they shouldnt have signed the lease.

The counterargument, of course, is that most residential lease agreements are boilerplate, and potential tenants have very little negotiating leverage, especially in NYC where the supply of tenants is high.

16 days ago on Landlords beware: Airbnb is booming in big cities, but many users run legal risks 2 recommends

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Agreed. You need to think about the parties to the original Lease Agreement. They have a share of rights in the underlying property, and Airbnb puts both parties at risk with only the consent of one of them. Completely agree.

16 days ago on Landlords beware: Airbnb is booming in big cities, but many users run legal risks 1 reply 1 recommend

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There is such a frustrating sense of entitlement on these message boards any time there is a conflict between the law and something “cool and new” that everyone just assumes MUST be legal. Just because someone comes up with a novel idea doesn’t mean there aren’t legal ramifications to be considered. Yes, it seems intuitive that someone, without using AirBnB, rented their apt for 3 nights and charged a fee, it’d largely go unnoticed and nobody would ever know. But that doesn’t mean such an act doesn’t (a) breach the covenants found in the lease agreement between the landlord and tenant, and (b) violate city or state laws that regulate the renting of rooms and/or the leasing of apartments. These laws are in place to ensure a fair bargain between all parties, and the health and safety of the community at large. And while an isolated incident would previously have been overlooked and never be punished, when someone designs a system that facilitates such transactions causing them to become more frequent and efficient, the rule violations are exacerbated.

Airbnb is a genius idea designed by intelligent people who saw a desire amongst consumers and met it in spades. But just because the app is smart and seems harmless doesn’t mean it is legal, and doesn’t mean that the laws it violates are archaic or unfair. There are other parties in the marketplace besides the rentor and rentee, parties who these laws were designed to strike a fair balance between and maintain and fair marketplace for.

16 days ago on Landlords beware: Airbnb is booming in big cities, but many users run legal risks 5 recommends