Nintendo has now claimed ad revenue on YouTube videos containing its content. Could this lead other publishers to do the same?

It’s a showdown! A battle for the ages! At the risk of this not sounding like a pay-per-view wrestling event, Nintendo enacting its right to collect a share of advertising fees run on videos from ‘LPers’, the crowd who post gameplay portions and sometimes entire game campaigns with commentary on YouTube, is an issue. Not a fight, though, with Nintendo executives and notable YouTubers bringing weapons to an abandoned parking lot, churning a subtle rage and eager to entertain the idea of bloodsport as some have portrayed this. Quite the opposite.

The stir began when several prominent YouTube users (after thousands upon thousands of retweets) reported Nintendo issued notices to remove videos of recently released titles. Responding later, the company then backtracked by permitting playthroughs be posted, but eliminating the chance to monetize. Nintendo would place ads at the beginning and end of each video with no room for others. Needless to say, this caused a fit of anger.

Any game developed and published by Nintendo is that company’s property. If you purchase a game legally, from GameStop let’s say, you own that copy. Therefore, under American law, you have the right to sell it as you so choose. But that transaction involves a physical unit. And this is where Let’s Play videos enter a legal grey area: if someone claims ownership of a game and decides to film themselves playing, likely adding commentary, does he or she violate copyright?

In a way, yes. Any use of game footage without permission infringes on copyright, especially when that footage aids in someone profiting. But the publishers profit too, and not just by desiring ad money; they also get free advertising. They know this, yet still Nintendo says it’s owed something–advertising working in reverse. Instead of paying for commercials and ad space, customers produce what act as commercials for an assembly of fans actively retaining the information. They say, “Oh man, I wanna try this!” and rush out to purchase the game themselves. And Nintendo makes even more.

The company may have just alienated a large minority of its base, and accordingly, hurt any future prospects with the legions of Nintendo faithful. Other publishers have noticed YouTube as a gold mine for fan interaction, casting the legal quandaries aside, meaning the big N has either set a terrible precedent or isolated itself. The only other notable publisher to punish LPers is Sega, demanding that anyone mentioning or making use of its Shining Force series remove the videos or be threatened with a channel shutdown. That news famously led TotalBiscuit to outright abandon Sega’s games, even though his videos reach over a million people.

A game that could credit its success wholly to its widespread play on YouTube is Minecraft. Notch tweeted recently he had met with YouTube executives and seriously considered taking ad revenue. He didn’t, and now the game has flourished. Word-of-mouth brought that game up from the thick of the indie scene, and a huge list of successful channels benefited. From that came a fortune and the gaming industry bowing at his feet. Nintendo had the same reputation, even going so far as to be called the saviour of games back in 1985. But the company may be stuck in that era.

Gaming is in a new age. The growth of ‘Let’s Play’ videos is a step in the evolution of a modern games industry, where regular individuals can gain spectacularly massive fanbases just by cutting footage up and talking over it. Nintendo’s claim is nearly a response to changing times, albeit wrongheadedly. Companies want to protect their property. No legal questions there. But the ‘LPer’ is culturally significant just as Nintendo is, with a base of admirers to spoil.

A floundering console and now this, Nintendo’s usually lackadaisical approach to adaptation might be catching up with it. Just embracing DLC was gargantuan, even when Microsoft and Sony have provided it for years. Heck, as the day comes that Microsoft announces its next console, everyone is finally anticipating the arrival of a new generation, even though Nintendo had begun things last year. Nintendo isn’t just out-of-date, it’s the next Segaesque boondoggle.

Legalities aside, the ‘Let’s Play’ premise should be celebrated. It’s unquestionably copyright, but it’s not as straightforward as a movie. Players tackle challenges differently. Dissimilar play-styles. A game is invariably about choice whereas films are static. Regardless, resolving this situation is a great discussion and shows how games are moving into greater arenas. Nintendo may have just conceded.

To the readers: Is the ‘Let’s Play’ move a sign of trying times ahead for Nintendo? And where do you stand on the company claiming ownership?

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  • coffeewithgames

    “Could this lead other publishers to do the same?”

    They already are, typical press not knowing/researching anything and only seemingly reporting one company doing it, because certain fans of that company started mentioning it.

    • JeffHeilig

      I tried to find other claims of companies doing it, but I couldn’t. The only one that came up was Sega. Do you know of other cases?

      • coffeewithgames

        EA. Again, the way YouTube has it setup to recognize sounds in videos, is the problem. Not necessarily Nintendo signing up for it. YouTube is very, very, very, very limited with who/what you can do if you have problems. Have you ever tried contacting somebody at YouTube, like a customer service rep? What about at Google? They’re like the Sasquatch…

  • Matt S

    You’re missing the reason Nintendo is doing this (as did most of the games press. Usual drill, gamers pretending they’re journalists and thinking they understand business decisioning and what goes on behind the scenes at these companies). It’s not about the money, it’s about brand protection. Companies can’t have fans running around trashing their billion-dollar franchises by filling Let’s Plays with swears, or poor production values. In other examples of Nintendo shutting down projects there was that Zelda fan-film.

    Poor quality fan productions are actually damaging to a brand because there is always the chance that someone will mistake it for something endorsed or official, and in that case no, it’s not “free advertising,” it’s unintentional sabotage by the fan.

    And so Nintendo is taking ownership of a problem that is too big to ignore. It might be impossible to police everything, but at some stage when something becomes too widespread – as Let’s Plays are – it comes time to step in and exert some control over the very lifeblood of a company – its IP.

    • coffeewithgames

      The initial site that I saw report it, had nothing to do with Nintendo shutting down videos or pulling videos. I know one of the guys that was trying to figure it out does a lot of gameplay analysis videos. Another guy gave an example of Nintendo inviting him to a press event, ENCOURAGING video recording, then his video from the event was slapped with a content ID claim. He had to pay his way to get to the event, clear his schedule, then take the time to make a video…and not get a dime for doing it? That’s how the problem really started, and branched out to the “Let’s Play” stuff.

      They both do A LOT of Nintendo videos with commentary, gameplay analysis, informational/news type videos of games releasing with trailers being shown, not just “Let’s Play” stuff.

      The one guy/site is how the whole thing kicked off really, one site, became another site, became another site. Nobody really understanding how YouTube and the partnerships work in a horrible fashion, because there is no good way to actually appeal the problems and talk with a human being.

      • Matt S

        Thanks for the clarification – I hadn’t been following it that closely.

        If it’s true that Nintendo is going after “reviews” or “analysis” of games, then that’s a problem. If a videographer is making substantial contribution to a work (as in 70+% of the work his his/ her own and the gameplay footage is used to highlight points) then Nintendo really ought to be leaving that alone. The material’s not necessarily in the public domain, but it would fall under “fair use” then.

        However, if there is minimal author input or it’s a let’s play that shows players the entire game? Yeah, Nintendo deserves a licensing fee for that. Other YouTubers don’t get away with using an entire music track when a publisher decides to slap down its rights, and the same should apply to game footage. It is Nintendo’s IP, and when someone buys a game, they are actually only buying the right to broadcast it within their homes (or on sell it). They are not buying the right to distribute the game’s content to the entire world.

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