Nintendo-lets-playLast week Nintendo began notifying YouTube users that had uploaded content containing footage from its games that it would be claiming the videos for purposes of monetization.  It’s fairly routine on YouTube for content owners like musicians and movie companies to claim and monetize user uploaded content which they own the rights to.

In a statement released via Game Front Nintendo officials explained their rationale this way:

As part of our on-going 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.

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For those familiar with YouTube’s Content ID system (explained in an earlier blog post)  Nintendo’s position doesn’t seem far-fetched.  However, for many Nintendo fans who earn money off  uploaded excerpts of their Nintendo-based “let’s play” game scenarios to YouTube, the news was met with outrage.  The Game Front story linked to a Facebook post by  Zack Scott,  a YouTube user  impacted by Nintendo’s move.  Scott wrote:

With that said, I think filing claims against LPers is backwards. Video games aren’t like movies or TV. 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! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

Now, while it is true that each gamer controls the game, it’s hard to get around the fact that the game infrastructure, graphics, characters, etc. is all owned by Nintendo.  Just because one can make the game scenarios play out according to a player’s choices does not appear to trump this truth, at least not in legal terms.

For a legal perspective on Nintendo’s move I asked Terry Hart, who blogs at Copyhype and serves as Director of Legal Policy at the Copyright Alliance, for his opinion:

You are correct in that Nintendo has legal grounds to claim “Let’s Play” videos. In Red Baron-Franklin Park v. Taito Corp. (1989), the Fourth Circuit held that the operation of a video game in a public place is a public performance, one of the exclusive rights of a copyright owner. Congress added an exception to the public performance right the following year to reverse the decision (17 U.S.C. § 109(e)), but the exception applies only to “electronic audiovisual game[s] intended for use in coin-operated equipment.” Any operation of a video game to the public outside that exception is a public performance, and this would include a performance made via a site like YouTube.

For their part, gamers also argue that Nintendo will lose fans (and market share) by making such a move, but that threat seems overblown.  Nintendo is not blocking the videos. Gamers will still be allowed to upload their game footage (and commentary) but it will be Nintendo–not the uploader–who reaps the financial reward.

On YouTube you’ll find any number of video/music mash-ups monetized by the artists (Justin Bieber, One Direction, Kelly Clarkson, etc.) and distributors that own or license the content.  Few argue with that.  Why should Nintendo-generated  fan content be any different?

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YouTube has remained mum so far.  They pocket their  share of the ad revenue either way so it’s a wash for their bottom line.There are YouTube users who try to make money by uploading and monetizing content (like movie trailers) owned by others, but they have no legal leg to stand on.  Some argue, like the gamers have, that the uploads generate more “exposure” for the content, but its an argument that falls flat. If you don’t own the material, you don’t have a right to make money off it