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Developers and Let’s Players of That Dragon, Cancer have run into some friction on how far fair use relative to Let’s Play content. Opinions are abound, and here’s just mine. And since we dip into some legal concepts here, I should make it clear that I’m not an expert or authority on the law.

YouTube Let’s Players have found their videos on The Dragon, Cancer getting copyright claimed recently. Let’s Players are internet personalities who earn money from ad revenue by playing and commentating over video games as an entertainment product. The Dragon, Cancer is a story driven game, developed by Ryan and Amy Green as a personal project after they lost their son, Joel, to cancer.

Following the release of That Dragon, Cancer, Let’s Players of the game were surprised to find their videos being copyright claimed by the Greens’ studio, Numinous Games, meaning that any ad revenue generate by the videos posted on YouTube went to Numinous, rather than the LPer who owned the YouTube channel.

Needless to say, this is a very sensitive topic, with people’s livelihoods at stake on both sides, as well as the memory of Joel Green. As such, everything I say here should be taken with a hefty nugget of salt, and I plead all discussion on this, whether it directly affects you or not, to be done at the internet’s highest possible level of civility.

 

This conversation was sparked when Ryan Green, Joel’s father and designer of That Dragon, Cancer, post a response to Let’s Players about the copyright claims. His post can be found here, and I suggest reading to grasp just how nuanced this issue is right now, but what I have to say isn’t really predicated on it.

While I have immense respect for the Greens, and everyone at Numinous, I can’t go into detail commenting specifically on That Dragon, Cancer because I don’t know the game in depth. It’s not my type of thing; I haven’t played it, and for obvious reasons I haven’t watched a Let’s Play of it. Instead I’m talking about the nature of LP and YouTube copyright in general, keeping in mind the crux of Ryan Green’s statement is that he believes the game lost sales due to LPs, because of its story-based nature.

 

A big term floating around the discussion of LP and copyright has been Fair Use, a legal provision that defends content creators against overreaching or socially harmful use of copyright protection, given certain circumstances. Primarily, Fair Use is used by critics, allowing them to use clips from a film or excerpts from a book, for academic or critical purposes, without fear of legal action being taken against them. Fair Use copyright exceptions do extend as far as “transformative content”, which people have argued must include things like Let’s Play, but ultimately there is no clear cut answer. Law is often decided in court, not in legislative halls, and no significant Fair Use case concerning Let’s Play has ever seen the inside of a courtroom; until one does, Let’s Play is essentially Schrodinger’s copyright; it’s legality is a mystery.

That said, I’ve tended to lean on the side of Let’s Play, like most people who talk about this. However, until now the conversation’s been pretty dichotic, and I have never believe that to be the way to go. I think some instances of Let’s Play should be covered under Fair Use, and some shouldn’t.

A major reason for this distinction for me has been visual novels, a game genre with so little gameplay they are actually regard as closer to novels. In fact, every time I’ve ever had to explain visual novels to a concerned family member wonder “why does that girl have cat ears”, the word “game” is never used. They’re like choose-your-own-adventure novels with pictures, and sometimes they don’t even have choice elements.

These I have always been strictly opposed to LPs on because any full LP contains most of the writing and images, and many LPs contain every word and picture that the visual novel has to offer. They create complete alternatives to actually buying the visual novel, and thus I think are too harmful to be permitted by Fair Use.

This is just one type of issue. There are almost many kinds of LPs with no commentary or limited gameplay, which makes it hard to argue for them being “transformative. These detract from the genuinely positive LPs that are both good and entertaining in their own right, and are informative or explorative in a way that adds value to the game itself. I wouldn’t love Xenoblade as much as I do if it weren’t for Chuggaaconroy’s incredibly in-depth Let’s Play of the game pointing out all the details about the world and helping me through the complex web of side quests.

More recently, there’s been a surge of mostly story-driven, atmospheric “games” that serve more as an audio/visual experience than as an interactive one. Many of these have been dubbed “walking simulators”, and while a good LPer can transform them with commentary alone, most LPs of these are not very different from the base experience. These, I think, are a big problem for LPs under Fair Use.

 

We’re not going have this issue settled in court any time soon. YouTube and their internal copyright system makes that very hard. But if we’re going to deal with YouTube’s system, that system should at least be more reflective of the actual nuance surrounding this issue.

As it stand, if you play more than a few seconds of copyrighted music in your two hour video, YouTube may automatically detect that, and have 100% of that video’s revenue sent to the music rights holder instead. That’s how it works. Either you get all the revue or none of it. There is no grey area for complex issues like these. No medium even just to wait at until things reach a meaningful settlement.

If we’re not going to see some reform, either from the law or from YouTube, at the very least I think it’s about time YouTube implemented revenue-split system, where, if after contesting a copyright claim it’s found that a small portion of your video does indeed violate some copyright, then the ad revenue from that video can be slit fairly between the copyright holder and the video creator. There are many instances where this is the right way to go, but as it stands YouTube offers no option for this.

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