Nintendo has always had this reputation as a friendly sort of company. Their big anchor franchises aren’t M-rated shooters but family-friendly adventure and platformer games that appeal to all ages. Nintendo of America boss Reggie Fils-Aime’s public appearances show him as a charismatic and knowledgeable leader of the video game industry. They’re the little underdog up against the power of conglomerates like Sony and Microsoft.
Yet, Nintendo has been on the back foot lately. The terrible results of the Wii U launch has put Nintendo on the back foot and now they’re trying anything to reverse course. Unfortunately, their latest move has struck a nerve with gamers online. Nintendo is targeting “let’s play” videos on YouTube and making copyright claims so they can scoop the ad revenue from the videos.
In case you’ve missed the news (and I wouldn’t fault you if you did as this only really affects Nintendo Let’s Players and the people who watch said let’s play videos), Nintendo is putting a claim on a number of let’s play videos on YouTube. They aren’t getting videos pulled or hitting channels with copyright strikes but are instead staking a claim onto those videos as they hold a copyright to the contents of the video and that those videos aren’t covered under fair use laws.
Nintendo is trying to spin this so they come off as the good guys. I guess that’s a matter of perspective. In a statement to Gamefront, Nintendo said, “We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.”
The problem is that very few people, including Nintendo’s army of let’s players and YouTube content producers, see Nintendo as the good guys. They see the company as taking away their livelihoods by taking the ad revenue from their videos. That might sound ridiculous to the general public but chances are that you subscribe to a number of gamers on YouTube whose day job is providing YouTube content. It’s not an easy living either. Recently, TotalBiscuit (AKA John Bain) said that he needs at least 100,000 views per video to make it financially worth his time to produce a video.
From Nintendo’s perspective, let’s plays are a reason for lost revenue. That’s not in the official statement. However, when a company files a copyright claim, it’s generally about the money. They see people watching videos of their content as people who are unlikely to subsequently purchase the game they’re watching the let’s play of. It’s not that they’re trying to recoup lost sales through ad revenue but it seems as though Nintendo is trying to discourage people from making videos which makes buying a copy the only way to experience a Nintendo game.
The argument supporting the Let’s Players is that they provide free marketing and exposure via their videos. As demos are increasingly rare and trust in the gaming press is at an all-time low, people feel that have few reliable places to turn to find out if they will be wasting their $60 by buying the latest games. Let’s plays combine game criticism with a demonstration of actual gameplay for what is among the best ways to determine if you should buy a game. I even watch first impressions and let’s play videos to help make buying decisions. Well done videos are great ways to make decisions.
However, Nintendo clearly doesn’t buy into let’s players claims of fair use through the educational and criticism loopholes. Nintendo sees let’s plays as using their intellectual property and making minimal changes to it so it’s largely derivative of the original work (rather than transformative) and, as such, still Nintendo’s intellectual property.
That interpretation of Nintendo’s action doesn’t really reflect the current state of let’s playing on YouTube. If anything, let’s plays on YouTube aren’t driven by people wanting to watch the whole game played in front of them but people who are interested in the personality playing the game in front of them. Let’s plays viewers often don’t view the videos as a substitute for playing the game but an alternative way to enjoy them.
The other copyright counter argument to Nintendo’s claims is that video games are an interactive medium so the videos may not be truly derivative per copyright law. Gameplays will differ based on how the games are played, even if they’re played under the restrictions of the game environment. For example, World 1-1 of Super Mario Bros. is the same level regardless of who plays it but how it’s played will be different depending on who plays it. I might like going underground at the first opportunity but you might prefer to stay above ground for the 1up mushroom.
Perhaps this brings up the most important point that one can bring up in discussing this issue. Nintendo’s copyright claims is exploiting copyright law that is outdated given current media. Current copyright law doesn’t really have anything in there for things like let’s plays. Until the laws are updated or legal precedents are set, nobody can really be considered legally in the right here. There is no proper law governing this matter.
The thing is that Nintendo’s claims aren’t just a legal matter but more of a moral one. The let’s players whose videos are being claimed are seeing their livelihoods harmed. These guys are advocates for Nintendo but have their love and free promotion of Nintendo products repaid with the YouTube equivalent to getting stabbed in the back.
You know, there’s an irony to this move by Nintendo. If you had blind item-ed me and asked me to guess which publisher was copyright claiming YouTube let’s plays, Nintendo might never have come up. Yet, here we are talking about a massive Nintendo PR blunder that could cost them in the long-run.
Even EA is working to rehabilitate its public image after not learning their lesson from their first Worst Company in America award. Nintendo is working hard to feel the wrath that EA once felt.