Nintendo Claims Ad Revenue from User Generated Youtube Videos

Knowing the esteemed legal pedigree of those here at the League, I was hoping some of you could help me tease out the major concerns here and on what basis the parties involved could pursue their claims,

“Nintendo is now claiming ad revenue on user-generated ‘Let’s Play’ videos that feature the game company’s content, according to YouTube user Zack Scott who received a ‘content ID match claim'” issued by Nintendo.

As a result, Let’s Play videos using Nintendo content will be bookended by ads while content-creators will not receive any revenue for the videos.”

My starting point for feeling this is different from traditional media is that video games don’t provide (relatively) passive experiences. I can watch someone watch a movie and that’s kind of like watching the movie–but watching someone play a game is not like actually playing the game in any important sense.

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11 thoughts on “Nintendo Claims Ad Revenue from User Generated Youtube Videos

  1. Legally speaking, I suspect YouTube can put ads on people’s videos for any reason without recourse. The price you pay for playing in someone else’s sandbox.

    Whether Nintendo actually has a copyright claim on Let’s Plays of their games is a separate question. I think there’s a decent fair use case to be made for Let’s Plays (for, in part, the reasons you cite in the post), but there’s no certainty here.

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  2. “watching someone play a game is not like actually playing the game in any important sense.”

    But then, some games are little more than “Dragon’s Lair” with cutscenes.

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    • I’m not sure precisely what Jim is saying here due to the fact that I am not really into video games, but I think he’s getting at something pretty relevant if it’s a reference to how much of video games evolve around storylines.

      Which is to say, I think that there is something lost from the perspective of the game-creator if people can actually go through all of the motions and watch the videos without playing (and purchasing or renting) the game. So I can see a claim here on the part of game-makers, for at least some games and maybe all. To me, one of the few reasons I would play a whole lot of games would be to actually get to see the stuff you get to see by advancing.

      On the other hand, I’m not sure the extent to which Microsoft should have rights over Red vs. Blue.

      Seems like kind of a complicated issue.

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  3. As a gamer, and a wannabe writer, I had trouble deciding who I’d side with here. On the one hand, there is some deprivation of revenue. Games won’t be rented or bought or even played, as Will Truman said. People making a living off of this are basically skimming the top of Nintendo’s profits, so I can see why they would go after them. It’s their work, story, art, etc… and by watching a Let’s Play, for example, someone else is getting ad revenue for your work. Imagine if I walked around asking people to pay me to read them the Harry Potter series, and I’d provide the books, and I get a steady paycheck this way. I think that’s the analogy they are going with, libraries and other argumentative holes aside.

    On the other hand, there is a certain creative license here that needs to be respected. I have heard that You Tube also told Notch that he could get ad revenue from Minecraft videos. However, in this case, most videos are displaying creative works and are tutorials for the recreating the creative works of others. It’s kind of like an online strategy guide in this sense. It’s a different part of the same origami crane that’s forming here, and I can see a lot of trouble for You Tube/Google trying to squeeze this into a two category deal. Instead of a positive content match, videos would need to go on a review basis, something that would be time consuming and expensive.

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    • I can’t speak to the legal side of the issue but it is a terrible marketing decision.

      The big youtubers were providing free advertising for Nintendo. Now they will avoid doing so in the future.

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      • I don’t know enough to argue legally, but I have seen a few things argued over through creative license. As a marketing choice, I agree that it’s pretty bad, though.

        However it can be argued that we’re probably in the middle of the next video game crash. A lot of studios are shutting down and being bought out, and everyone’s trying to stay afloat. EA was trying to push everything to have online, and multi-player, and micro-transactions, for example, and “supposedly”, because I can’t recall where I saw it, a game needs a return of something like $5 million to be considered for a sequel. Meanwhile, just to stay relevant, we see a new Call of Duty every 6-12 months. Also, EA has said that there would be a new Assassin’s Creed every year until the players say stop.

        We’re running the market into the ground by being afraid to take risks, and so we’ve seen the rise of the indie game developers and too many sequels to the same games.

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        • You have no idea. I think the ToS has it at about $0.005 per view and ad click. So, at 20 views/clicks the video uploader gets $0.01 and at 2000 views they make their first dollar. To make anything reasonably worth fighting over? 100,000 views would be about $50.

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  4. The legal justification would be that the individual images and sounds which make up the game are all copyrighted by the game creators and while you have a license to play them on your game machine/computer, that license does not extend to public performance, in the same way that I have the right to play my LOTR DVDs on my computer, but not to rig up a projector and run my own movie theater with them.
    And fair use of copyrights mainly extends to academic use and parodies, neither of which apply here.

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