The short answer is yes. The long answer is…it’s complicated.
A “Let’s Play” video is a video where a content creator plays a video game while commenting on the experience. Most of these videos function as game walkthroughs, showing the viewer how to do a puzzle they’re stuck on in a Zelda game, or showing them a new shortcut in Mario Kart. These videos are typically informative and funny, adding something to the game that simply isn’t there when a person buys it at the store.
A lot of famous YouTubers are known for their hilarious gameplay videos. The job isn’t ALL fun though, and I’m not talking about sore thumbs. Let’s Play videos are sometimes tagged by YouTube’s automatic system as copyright infringement. Whether a video is considered fair use is then often up to the company that the original content belongs to, and they don’t always play nice. As stated in this article from Wired, Nintendo is known for striking at videos such as Let’s Plays, and not backing down. As the article mentions, this causes undue stress and financial hardship to the content creator, as the videos are often taken down or ad revenue from them suddenly gets directed to Nintendo with YouTube hardly batting an eyelash.
According to the Wired article, Fair Use has four parts, one of which states that “the purpose and character of the use” must be taken into account. Though copyright law is difficult to understand, I think this portion of the Fair Use guidelines is asking ‘Is what you’re creating different from the copyrighted material you used?’. There is a very large difference between actually playing a game and watching someone else play it. Why do people play video games? Most of them enjoy mastering the gameplay mechanics, or the mental challenge that certain stages pose to a player. Compare that to watching a video: I watch Let’s Play videos because the people making them are funny, helpful, or both. This idea is also hit in the reading RW, Revived, where the author claims “the critical point to recognize is that the RW creativity does not compete with or weaken the market for the creative work that gets remixed”, and I agree with that statement.
Take, for example, this Let’s Play below. The creator and his colleagues have clearly done a lot of work given the intro sequence credits in the first video of the series. In this video they compare the mechanics and art style to old games of the same storyline. Later videos in this series show how to navigate the more difficult and confusing areas of the game, keeping the fun alive even if the player gets stumped by a locked door in a dark dungeon. This is clearly something new remixed from old.
Let’s Play videos, as most people know, are not the only game-related content uploaded on the Internet. Game reviews, speedruns, and gaming competitions are all present on the Web too. So are modded versions of games (games with something changed, such as character or building design), pirated copies of games, and games available for purchase through legitimate sources like Steam. So where do we draw the line on copyright? Surely pirated copies are not covered, but what about modded games? What if the only thing the modder did was change the color of the sky? How about add one or two vehicles to the game and a new character to the already extensive lineup? Where do you think the line should be drawn in the vague world of copyright law?
chuggaaconroy. (2009, December 5). The Legend of Zelda: The Wind Waker – Episode 2. Retrieved from https://www.youtube.com/watch?v=1PlDhTqyuQc