Are Let’s Plays Fair Use? Probably not

One of the world’s biggest gaming YouTubers, PewDiePie, is embroiled in yet another controversy – this time having let loose a racist slur during a PUBG stream. In a response he posted yesterday, PewDiePie, known to his mum as Felix Kjelberg, admitted he was a bit of an idiot.

“I should know better,” Kjellberg said. “I can’t keep messing up like this. You probably won’t believe this when I say this, but, whenever I go online and I hear other players use the same kind of language that I did, I always find it extremely immature and stupid,” adding that “I hate how I now personally fed into that part of gaming as well.

“I’m disappointed in myself, because it seems like I’ve learned nothing from all these past controversies. And it’s not that I think I can say or do whatever I want and get away with it. I’m just an idiot. But that doesn’t make what I said, or how I said it, OK.”

While it’s an earnest response, it rings a little hollow given how he’s apologised for the same sort of thing many times before. His outburst has unwittingly brought about another controversy though. In the wake of his racist outburst, Firewatch developer Campo Santo has filed a DMCA complaint – or at least suggested it would – to bring down videos that PewDiePie made of their game. It has people on the internet – content creators and their fans – eagerly beating the “Fair Use” drum. Many people believe that Let’s Plays and other gameplay videos fall under the specifically US legal doctrine of Fair Use, which broadly suggests that “copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work” is Fair Use and can be done without permission from the copyright owner.

It’s kicked up a bit of a hornet’s nest, because it turns out that Let’s Plays may not be Fair use after all. Instead, videos of this ilk are more akin to permissive use, with developers and publishers having a secret, silent agreement with each other, as Let’s Plays are beneficial to both parties.

The laws around Fair Use go back to 1976 and don’t really have much context within the modern realm of video games and online video.

Says Bryce Blum of ESG Law, speaking to PC Gamer.

“The key factor for evaluating potential fair use is whether the creator has done something transformative to the original work. I think Let’s Play videos seldom, if ever, meet that standard. At the end of the day, it’s just someone playing the game within the exact confines set forth by the publisher and adding their commentary over the top.”

It’s a murky situation , but not something anybody really wants to test as Fair Use is established on a case-by-case basis. Each case would likely run in to millions of Dollars – and nobody wants to upset the status quo.

You may be of the opinion that Campo Santo co-founder Sean Vanaman is abusing the DMCA and its systems. As far as the legality of it all is concerned, Campo Santo is well within its legal rights to have PewDiePie’s video yanked. Says video game attorney Mona Ibrahim, writing on Polygon:

“But from the perspective of the content owner, Vanaman’s reasoning is irrelevant. You see, a licensor doesn’t need a reason to withhold a license. That also means that they can withhold a license for any reason.

In the case of a Let’s Play video, a content owner like Campo Santo would argue that they can revoke their permissive, non-exclusive license to stream (granted to end users) against anyone who uses their content in a way they find offensive, or in a way that associates their game or brand with something against their values.”

This is the approach Vanaman has taken. He doesn’t want his studio’s game associated with Kjellberg’s channel or content, which is, arguably, a perfectly legitimate basis to withdraw a license for which you need no legitimate basis to revoke.”

You could argue that because Campo Santo, on its website, gave permission for content creators to make videos, that they’re reneging on that – but according to another prolific video game attorney, Ryan Morrison (via PC Gamer) “If a license doesn’t say ‘non-revocable,’ you can revoke it anytime you want.”

It’s an issue I’m split on. I can’t excuse or wave away Kjelberg’s behaviour, and I understand why Campo Santo would want to distance themselves and their work from the guy – but I also don’t like the (entirely legal!) idea of IP holders getting content removed because they don’t like the people (or their actions) behind it.   Could this be the beginning of a slippery slope? I suppose time will tell.

Last Updated: September 13, 2017

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