The “Let’s Play” is now a powerful form of entertainment. Its prominence brings legal questions, and may help determine the future of the videogames industry.

Picture this: You’re a young kid who loves games. (You were young at some point, but you may not have loved games.) You also habitually watch YouTube videos. It’s a daily occurrence that you find yourself slaving in front of the computer screen as someone inside screams and hollers for your enjoyment. Or that person is meticulous: delicate, but not so much that watching is tiresome.

You decide one day that you can do that too. Entertain a potential audience of millions and make a career as a game documentarian. The perks are awesome: you’re the boss, free to work and not work when you want, and you make a living doing something you adore. It can even be a side-job, a part-time gig. Edit videos when you have the minutes to spare. If you spend your life game-playing and you have the technical skills, why not?

That’s a reality for a select few commentators. Serendipitous as they are skilful, these viral businessman have to be provocative or informative to survive. It’s the business of keeping subscribers ogling at their computer screens, day after day, and the constant tug-of-war in their personal lives. It’s a questionable business, too, as publishers wrangle with content creators almost on a weekly basis on the legality and ethics of using others’ content for financial gain. The bleakest description is copyright, the more informed opinion says promotion.

It’s Good For Everyone

In this questionable business, everyone wins. Content creators potentially earn liveable wages for essentially basic work, audiences numbering in the millions laugh and cry along with their favourite personalities, and the publishers garner free publicity. No expensive ad campaigns, no worry of review scores; the interest is purely organic and with no investment from corporate. All it takes is a review copy provided to creators, like the publishers do normally, which costs nothing because review “copies” go over Steam or other digital formats.

While it sounds good for publishers, it’s also great for players. They get to witness a game in action, sometimes live, paired with natural reactions from someone whose opinion they trust. Moreover, they can watch just for the entertainment of it all: PewDiePie, the most subscribed YouTube channel, doesn’t review games. In fact, cycling through his list for a few minutes, I couldn’t find one single game review. His boisterous antics and (seemingly) genuine shrills when playing horror games have earned him an audience of 12.5 million. (The third season finale of AMC’s The Walking Dead set the cable ratings record with 12.4 million.)

Legal Issues (and Sega)

Some publishers, though, have barred footage of their games appearing on YouTube. They issue copyright notices and within hours content is taken down. This is important to note because the video service only allows three of these objections before it suspends an account. Even one notice has consequences: YouTube disallows partner features as well as basic functions. For a person that has hundreds of videos, this is devastating. The publishers guilty of this come out the bad guys, even if the law is on their side.

And that’s where legal quandaries take their toll. For the most part, publishers permit the use of their content because it’s free and community-driven promotion. But companies feel the need to protect their content, which is their legal right. In doing so, they face the scorn of a considerable audience. Last November, Sega quietly began removing videos of titles over a decade old. Footage of Shining Force 3 and other games forced the shutdown of hundreds of YouTube accounts that violated the three strike rule. Some videos were fan-made translations as parts of the Shining Force saga never saw release outside Japan. Many iterations weren’t tagged with ads.

Infamously, the “Cynical Brit” TotalBiscuit received two takedown notices. The videos dissatisfied Sega, even if one had no footage of any Sega title. One merely mentioned Shining Force and that was enough to warrant a notice. TotalBiscuit wasn’t alone; in fact, Sega went so far as to apologize for its actions, directing affected users to the customer support division for help. Six months later, in May, some still hadn’t had their claims revoked, but TotalBiscuit did.

If TotalBiscuit never spoke out, the issue were of largely gone ignored. Sega sent these letters in secret, and unless a majority of users reported the discovery to media, nobody would have found out. However, an audience of a million strong can change that. The Cynical Brit boycotted Sega games as the ordeal coalesced, a ban that still appears to be in effect. Not to imply that Sega gave TotalBiscuit precedence, but it remains an ongoing problem for many who had spent the delicate time to translate Shining Force 3 from Japanese into English.

Sega sought copyright claims, but it did so wrongheadedly. The issuance to take down one of TotalBiscuit’s videos, where he had simply said Shining Force 3 out loud, is not a legal basis for copyright. If that was the case, podcasts would be a mired part of the Internet. Editing in footage however is declarable copyright, even if the video had no advertising. That, though, enters an actual legal grey area: fair use. The ability to use copyrighted content limitedly without consent.

Fair Use and Nintendo

Fair use is a defining law protecting most of what exists online. Its enaction is singly responsible for allowing YouTube users to post Hank and Marie from Breaking Bad reacting to Miley Cyrusa 1995 Game of Thrones mockery, and other viral videos without the creators getting sued for all their worth. Videos claiming fair use are generally comedic or use a clip to make light of a point, but none is permitted to have advertising. Unless, of course, it’s granted by the original creator or owner.

Let’s Plays don’t fall under the fair use category. Fair use is shaky legal area anyway, especially in a world dominated by online video. Anyone can download anything, mash together a clip on YouTube and claim fair use. (For context, read into the ongoing court battle between Viacom and YouTube. Fascinating stuff.) But that is what the law provides: a right to use content with the expectation it won’t be monetized. Game publishers have overstepped their bounds in this sense, and this is where things turn murky.

YouTube has a system called ContentID. It’s a neat tool that enforces copyright, but it has been wrought with glitches and chastised by content creators. False copyright claims are commonplace, and YouTube has done little to remedy the situation. Using ContentID, Nintendo went about clearing YouTube of some game play videos. When creators aired their grievances on social media, the company opted to allow such videos to exist but only if all advertising revenue was redirected to Nintendo.

Let’s Players weren’t thrilled. Their hard work was relegated to fan-made advertising, except Nintendo now earned revenue. They saw it as a betrayal, and at the center of the debate, Zack Scott (whose Facebook post got the most traction) vowed to abandon Nintendo on his channel. Much like TotalBiscuit had done with Sega. After a month, Nintendo relented.

On the dilemma, Nintendo of America president Reggie Fils-Aime told Kotaku: “The fans need to understand that we see the issue, we understand the issue, but, right now, all we’ve done is take the first step to protect our IP.”

This is an example where game companies’ thinking should differ from other media empires. If someone narrates over a TV episode or film, that has the potential to divulge vital plot points. Watching those clips might discourage a prospective fan of buying seasons or skipping commercials to grab a snack. We approach games a different way: the enjoyment comes from playing, so the only thing to “protect” is spoiling a story. Nintendo was limiting access to its games purposefully for nonsensical reasoning.

Publishers should consider Let’s Play videos as extended trailers. Attracting eyes is difficult with a thirty-second ad, when there’s barely an opportunity to show a game in action. Personally, I go to YouTube to learn more about games I might not necessarily have the opportunity to try, or can’t afford now that I’m entering college. A half-an-hour video offers an intimate glance into a game’s fundamental operations, more so than any trailer ever could. The bonus is that viewers gawk at these videos out of interest.

A Fine Line

One legitimate problem facing the Let’s Play domain is when a YouTube user posts an entire game. Over 30 videos, a 20-hour adventure becomes “something to watch” instead of playing. For open world games like Minecraft, this is a non-issue. Adventure titles like The Walking Dead: The Video Game are a different story; fans can experience the same emotion as their commentators, popcorn and drink in hand. When games play like a movie, it’s worse: Recent narrative exposés into the human psyche have grown in popularity, but watching Gone Home and Dear Esther leaves the same effect as controlling the character.

It’s a fine line pushed daily by content creators, seeking more leeway to do what they love: Play games and talk about them. The engrained belief that any game footage is protected from copyright is problematic, but understandably, game companies have mostly kept their distance. The ones that haven’t faced an army of angry armchair critics refusing to purchase future titles. And when that affects a company’s bottom line, it is sure to listen.

The murky waters navigated by Let’s Play as a concept is a fascinating effect of the Internet. Legalities aside, it’s the first time people have taken back control of content, when other fan bases struggle for the same equality. The music industry is a great example. These companies fear piracy and prefer “protection” over comprehending the communal effect for business. Put a product out there, calculate a response, and act accordingly. Game companies are doing this by not doing anything, allowing an atmosphere where they can gauge consumer desires just by observing.

Think of it like when TV and film studios conduct focus groups. Video comments are readable, in full view, and easy to note. These comments are especially useful when a commentator specializes in one company or genre. Every comment comes from an impassioned fan, the target audience, and therefore opinion collection better reflects a consensus. Many companies do this on social media, thus it would not surprise me to hear of publishers tracking the same data on YouTube.

The Future

As for what lies ahead of the Let’s Play community, not much will change. Publishers have witnessed the backlash of messing with something good, but maybe not legal. Most game companies though do permit profiting in this matter, recognizing the potential payoff in their own pockets. As long as video dominates the online landscape, believing in Let’s Play as a viable advertising format will become an industry standard (if it isn’t already).

(An aside: Let’s Play is so ubiquitous that it achieved the online equivalent of fame: a Wikipedia page.)

It will also be a great way to attract new fans. Watching YouTube is in the daily itinerary for an unimaginably high number of people. Gaming is one of the foremost channels, up there with comedy and music, and to have viewers engage directly with the content has an unprecedented level of reach.

But the most important value of the Let’s Play shebang is it reinforces the communal achievement of videogames. Although one person records and edits the content, thousands upon thousands watch ravenously. Minus trolls, comment sections fill with opinions and debates. From strategy chatter to game ideology, the Let’s Play spurs a unique sort of discussion. A habit we’ll need to perfect as games get more provocative.

Your kids can then take the reigns. Except they’ll be arguing over technology we have yet to adapt.

Picture courtesy of Tacoman from PlanetMinecraft.com.

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