Were you ever scolded as a child for playing too many video games? Did your parents tell you that your Game Boy was rotting your brain or that you would never make any money playing Donkey Kong? Or (perish the thought) have you ever been the parent doling out such lectures? Well, I hate to be the bearer of bad news, but these common reprises about video games—particularly about their earning potential—might be outdated by a decade or so. In fact, in the creator economy, video game content creators are among the highest paid. As far back as 2014, gaming YouTuber Felix Kjellberg (PewDiePie) was reportedly earning $4 million each year. A decade later, gaming creators have even higher earning potential. YouTuber Olajide Olatunji’s (KSI) rise to fame began with posting reaction videos to FIFA video games. In 2023, his earnings were $23.9 million according to Forbes. A recent market study predicts the esports (electronic sports) and game streaming industry to be worth $3.5 billion by next year.
The kids are watching what now?
But let’s take a step back; for the uninitiated, maybe I should explain what I’m talking about. After all, who can keep up with what the kids are doing nowadays? While video game content is a broad genre that can vary in form, I will be focusing on the most popular format: Let’s Plays. A Let’s Play involves a user playing through a video game streamed in real time (e.g., Twitch) or in an uploaded playback (e.g., YouTube, TikTok). These playthroughs often include a visual of the gamer accompanied by their reactions and commentary, which may be live or scripted.
The copyright of it all
“But author”, you might interject, “how are these gamers able to make money from the copyrighted work of others?” Good question. As you know, copyright is a form of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a given creative work. This ensures creators can make money off their products, which in turn (in theory) incentivizes them to create new and valuable goods. Copyright law protects the rights of both creators and users. Fair use (fair dealing in Canada) allows for the copying of a portion of a copyrighted work for a valid purpose such as parody, satire, criticism, or review. This aims to strike a balance between ensuring creators can make a living from their product while protecting the freedom of expression and access to information of consumers.
Taking inspiration from or copying parts of another creator’s work is not new. Studies have shown that drawing from another’s work can be crucial to the creative process. What is new, however, is the amount of people using copyrighted content online without restriction. Traditional entertainment involving copyrighted work often involves lawyers, licensing, and/or direct approval from copyright holders (think Weird Al, Saturday Night Live, or music sampling). Given the tremendous scope of copyrighted material being used by others in their content each day, how do we ensure that infringers are held accountable without punishing those whose content is protected by fair use?
Legislators have struggled to find this balance. Copyright legislation in the US has been criticized for over-prioritizing the rights of copyright holders. To remain compliant, many platforms have adopted overzealous policy approaches such as copyright strikes (where the video is automatically removed when copyright is claimed) and Content ID (where AI flags copyrighted material and allows the holder to choose between taking it down or claiming the video’s monetization). These strict measures can have a chilling effect on creators who use copyrighted material, even when it could rightfully be claimed as fair use.
“But author”, you may again protest, “how can the full play through of a video game be fair use? Surely where a gamer’s commentary and editing are limited, their contribution would not be transformative.” A good point you make, intrepid reader. In many circumstances, Let’s Play content would likely not be considered fair use. Yet, while other content creators deal with frequent copyright claims on their fair use videos (such as commentary YouTubers), gaming creators often escape this same fate. How does that work?
Infringement: Maybe a Good Thing?
Despite the genre’s popularity, there is a lack of litigation on whether Let’s Play videos fall within fair use. It is up to the discretion of a copyright holder to issue a strike against the unauthorized use of their content. In most circumstances, copyright holders of video games simply do not issue strikes. Why is that? In a nutshell, it is because the benefits of copyright infringement often outweigh the downsides. Many developers (especially smaller ones) consider Let’s Plays as valuable free promotion. Red Barrel Games attributed the success of their game Outlast to Let’s Play videos since they had no marketing budget. Popular gaming content creators are thought to have a significant impact on game sales, with many developers seeing a significant boost in sales upon the viral playthrough of their game.
Larger developers have also seen the benefit of Let’s Plays. In 2013 when a change in YouTube’s Content ID system caused many Let’s Play videos to be blocked, several developers (such as Blizzard, Ubisoft, and Capcom) responded by working with YouTube to ensure such videos would be re-instated and prevent future issues. Some developers, such as Xbox Game Studios and Ubisoft, have even created guidelines for Let’s Play streamers to follow when using their copyrighted material in gaming content. The Let’s Play genre has become a mainstay within the gaming consumer base that developers have been forced to accept. Even Nintendo, who was notorious for issuing copyright strikes, eventually had a change of heart. After years of takedowns followed by years of attempted compromises by way of revenue sharing programs, Nintendo eventually gave up and decided to allow Let’s Play and other gaming videos.
While many developers view the genre as beneficial, others still issue takedowns. For example, developer Campo Santo issued takedowns to PewDiePie’s Let’s Play videos of their game to distance themselves from the creator who had recently become mired in controversy. While copyright holders are legally entitled to takedown any unauthorized use of their work, there is a great deal of inconsistency in such claims. The lack of case law on the topic creates uncertainty among Let’s Play creators as to the scope of their rights. As technology and content creation evolves, it may be the case that fair use should be expanded to include some forms of Let’s Play content. While this legal issue could be grappled with if it ever argued before a judge, takedown challenges are made directly to the platform, and most are dealt with internally. Most gaming creators would likely not have the resources to take on the likes of YouTube or Twitch. This issue hasn’t escaped everyone’s notice. Video Game Lawyer Ryan Morrison has stated that while the entire Let’s Play industry would likely be considered legally infringing, he would be the first to argue that it constitutes fair use. He is not alone in this mentality. Indeed, many argue that fair use must expand as technology progresses to ensure that creativity, freedom of expression, and innovation are safeguarded.
Fair use is an important doctrine that ensures copyright law is not interpreted so strictly as to stifle creativity. Let’s Plays remain in a legal gray zone. While most video game copyright holders are happy to allow the unauthorized use of their work, others are not. Do Let’s Plays fall within the scope of fair use? If they don’t currently—should fair use be expanded?
Given the expected rise in this industry’s popularity, this legal quagmire could present an interesting challenge—a certified copyright conundrum, if you will. So, whether you can wrap your head around kids today and their incomprehensible desire to watch someone else play a video game, the future of Let’s Plays may be worth watching. And if you don’t want to watch it, then I could watch it for you. You can watch me, watching other people watching this industry of people watching other people playing video games.