Video Game Playthrough Footage Should Be Fair Use

by Christopher Harbin

It’s pretty easy to get duped into buying a crappy video game.  A lot of video game marketing  is pretty shady.  Submitted for your consideration: the Madden “bullshot.”  Bullshots are promotional screen captures released by game companies that bear absolutely no resemblance to the final product. Gameplay footage released by game companies can be even more misleading.  Some games don’t even fairly represent the correct genre.  I’m looking at you, Brutal Legend.

As one of the “have it right this second” generation, I buy my games on release day before the reviews are out.  And because you can’t return video games after they’ve been played, I have been burned more times than I can count.  Hellgate: London was so bad, I half-expected to find it kicking my dog in the middle of the night.  In fact, I stabbed my eyes out with a fork because it was faster than uninstalling the game.   I’ll be here all week.  Try the veal.

So now I’m a big fan of watching video game playthoughs on various gaming sites and Youtube to decide whether a game is worth purchasing.  For me, I find that gameplay footage is much more useful to my purchasing decision than reviews — even video reviews that include snippets of gameplay.   Especially with long role-playing games, I like to be able to see the game at several different points to see if a slow game picks up or whether a game that looks good in the beginning sputters out.  For example, over at Giantbomb.com, two editors recorded and posted their complete playthough of Persona 4, a 100 hour Japanese role-playing game, which included their commentary as they played.   After watching about ten hours (not in one sitting, thanks), I decided to purchase a copy.

I can’t help but wonder if these playthroughs are copyright infringement.  There weren’t any litigated cases that I could find because  most companies probably welcome the additional publicity of their games.  But lately Rockstar Games has been taking down footage of their newly-released game, Red Dead Redemption.  Also, it appears that playthrough footage of Grand Theft Auto’s IV’s expansion “The Lost and Damned” has also been pulled.  I find this a tad odd as usually only publishers of crappy games care about gameplay footage leaked onto the web as they try to encourage new-release sales.   After reviews come out, the cats out of the bag.   Red Dead Redemption and The Lost and Damned both  enjoyed high praise, so I wonder whyRockstar appears to be  issuing  take down notices.   The Pollyanna in me would like to think that these takedown requests stem from some overzealous intern rather than from corporate goons demanding outright control of all possible uses of their work.

Anyways, I think the case for gameplay footage being fair use is relatively straightforward:

Purpose and Character of the Use: Usually gameplay footage is paired with some sort of running commentary that is either entertaining or informative.  This seems pretty transformative to me especially when considering that the medium is also transformed — video games are actively played and gameplay footage is passively watched.

Nature and Amount of the Use: Both these factors probably tip towards copyright owners.  There is obviously a difference between a 5 minute sample of gameplay footage and an entire game, though.  Interestingly, I find longer gameplay videos more relevant for my purchasing decision.

Market Effect:  Gamers like to play video games — not watch them.   Even games that are quite story intensive — like the fantastic Heavy Rain — are still pretty interactive.  The only negative effect on the market for video games is that consumers who would be disappointed after purchasing the game probably wouldn’t buy the game after viewing extensive gameplay footage.

To close, I know some of you are thinking that my analysis is biased because I have a horse in the race.  My response:  You didn’t play Star Trek: Online, man. You didn’t have to endure the steaming hunk of crap that was Daikatana.  I was there, man.  I WAS THERE!

15 Responses to Video Game Playthrough Footage Should Be Fair Use

  1. Yes, it may be fair use. But it might violate the shrinkwrap or clickwrap license, which makes a fair use analysis moot – don’t you think?

    • Christopher Harbin says:

      I just checked three games sitting on my desk and nothing in the agreement speaks to this issue. I’m sure you guess my view on adhesion contracts and fair use.

  2. Aaron says:

    I bought Gun, I’ve been burned plenty.

    • Christopher Harbin says:

      Only through confrontation of our pain will our wounds be healed, brother.

  3. Well, put up some footage, wait for the notice, and fight it man! If you can watch someone else play a video game for 10 hours you have the time to fight the man.

    You can make a case against full walkthroughs and prolonged captures. Why do I need to buy Diablo II if I can just watch it and find out that I am the bad guy? WTF?

    I can’t see a large market for people that want to watch play-throughs, but then I only imagined kids without quarters actually watched video games.

  4. Sean F. says:

    @ Christopher
    Well, yeah. The only playthroughs that are really popular are the ones with commentary like Spoony’s “Let’s Play SWAT 4″ videos or the machinima series “Freeman’s Mind.”

    On-Topic:

    It, sort of, depends on the game in question. If a game can be fully appreciated simply by watching someone else play it, then posting a full playthrough of it is essentially the same as posting a full movie. I’m certain that I don’t need to tell you that such an act “may constitute a felony with a maximum penalty of up to five years in prison or a $250,000 fine” according to Title 17 U.S. Code sections 501, 506, and 508. (Courtesy of the FBI Warning at the start of every DVD)

    In essence, there’s sufficient legal precedent, in my opinion, to call it copyright infringment.

    Of course, I realize that gaming is a much more expensive hobby than movies (I’m an avid gamer myself). However, rental services exist for a reason. If you’re unsure of a game, then rent it or borrow it from a friend. If you like what you play, then it’s usually a safe bet to take the plunge.

    • Christopher Harbin says:

      People who watch someone else play the game don’t buy it, so there’s no market loss. I’m betting the “I’ll buy the game and you play it so I can watch” market is pretty close to zero.

      “If you’re unsure of a game, then rent it or borrow it from a friend.”

      Why? It’s very unlikely video game footage affects the market in any meaningful way. Also, video game companies are doing everything they can to disembowel the used game business and on PC, used games aren’t even an option. Doesn’t address my concerns. I really can’t think of a good reason gameplay footage wouldn’t be fair use. Let’s say I taped footage of my wife and I playing Clue and posted it on Youtube. You’d get to see how the game rules work, but you’re not getting the same product as if you’d bought Clue. It’s not a market replacement. So too with game footage.

  5. [...] Video Game Playthrough Footage Should Be Fair Use « The Legal … [...]

  6. Sean F. says:

    Clue is a strictly multiplayer game and, as such, the game is different every time it is played. However, there are a number of games (most often text/menu based RPGs) that can deliver a very close experience simply by being watched.

    Even though the experiences are not exactly the same (or perhaps because they aren’t), I would argue that a full video playthrough of such a game would qualify as an abridgement of the original work. As such, it should be judged according to the standards of an abridgement.

    Aside from all of this, video games are not monolithic entities. They have myriads of copyrighted material/intellectual property as part of their construction. The game’s soundtrack, graphic design, character likenesses, etc. Even if you haven’t delivered the whole gaming experience, you’ve delivered the entire musical and visual experiences. Putting aside that both are integral parts of the gaming experience I would hold that neither action is fair use under the law and that anything that includes one, the other, or both isn’t either.

  7. Attila says:

    eh thats why I love living in China. With my chipped system and bootleg copies at less then a $1 each. I can test out all the games I want. Although I have found myself buying really great games that were “worth” it just to support the developers.

    Many games are just poorly written (story wise) and developed by people who are crunched on time schedules. Unfortunately for a good game to be made, it costs hundreds of thousands in story writing, game interaction and graphics.

    Then there are some companies who prefer to spend more in marketing to dupe the average joe to spend $40-50 and up on a game thats worth around $20-$25’sh.

  8. Aaron says:

    It might be fair use, but that won’t stop a lawsuit. Just look at the Hitler parody videos are youtube. They get pulled daily and are fair use. The problem is regular people and most businesses don’t have the resources to take on a studio

  9. Alycia Loewe says:

    And there’s a particularly strange case with the Wii. Everyone and his dog owns one, and the hardcore who have them spend all their time bemoaning its status as a casual shovel-ware platform. But when it does do something interesting? We ignore it because it’s on the Wii.

  10. Ed says:

    It’s fair use in my opinion. Many post videos on youtube and what is the difference between a video game review and a reviewer showing clips and talking about a movie just released in the theatres? If the clips are removed – the game can still be reviewed without the clip and any take down notice will be irrelevant. But, most publishers would love the extra publicity and those that don’t won’t get the business in the end anyway. Ultimately the consumer WILL decide what is a hit. Also, this time of social review of video games actually would help producers fine tune what to make and how to make it better. In my opinion, the publishers who listen to the consumer will always be the most successful.

  11. Anonymous says:

    I asked Blizzard Entertainment if they’re okay with it, and their answer was Yes (for both storyline campaigns and multiplayer videos).

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