The Quest to Quell the Let's Play Controversy: A Strategy Guide on Resolving Tensions Between Developers and Gamers

Hofstra Law Review Hofstra Law Review

Volume 52 Issue 3 Article 9

3-1-2024

The Quest to Quell the Let's Play Controversy: A Strategy Guide on The Quest to Quell the Let's Play Controversy: A Strategy Guide on

Resolving Tensions Between Developers and Gamers Resolving Tensions Between Developers and Gamers

Gina Aliberti

Maurice A. Deane School of Law at Hofstra University

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717

NOTE

THE QUEST TO QUELL THE LET’S PLAY

CONTROVERSY: A STRATEGY GUIDE ON

RESOLVING TENSIONS BETWEEN DEVELOPERS

AND GAMERS

I. INTRODUCTION

Click. With a sigh of relief, you sit back in your chair.

After days

of recording, editing, and quality assurance, you finally uploaded the

next video in the installment of your Let’s Play

series.

It has not been

easy, but your fanbase has been collecting momentum.

Your relief is

short-lived, however.

Without question or investigation,

YouTube

1. See Kaya Yurieff, YouTube Burnout Is Real. Creators Are Struggling to Cope, CNN,

https://www.cnn.com/2019/12/18/tech/youtube-creator-burnout/index.html [https://perma.cc/A3Y4-

9P96] (Dec. 19, 2019, 9:35 AM) (explaining that the cycle of creating content can be very over-

whelming for creators because there is a constant pressure for creators to continue to post frequent-

ly). “Over the past few years, creators have started openly discussing feeling burnt out, which often

comes from the pressure to constantly churn out new videos for their thousands—sometimes mil-

lions—of fans.” Id.

2. Let’s Play, BULBAGARDEN: BULBAPEDIA,

https://bulbapedia.bulbagarden.net/wiki/Let%27s_Play [https://perma.cc/24MF-EX84] (Dec. 2,

2022, 8:05 AM) (“A Let’s Play video . . . is a type of user-created video often posted on

video-sharing sites such as YouTube. Let’s Play videos offer recorded walkthroughs of gameplay

for various video games, including commentary by the video’s creator(s).”).

3. Vidya Narayanan, How Long Does It Take to Create a YouTube Video?, MEDIUM (Sept.

25, 2019), https://medium.com/rizzle/how-long-does-it-take-to-create-a-youtube-video-

266ae3496bf3 [https://perma.cc/N7XP-KCWK]. There are many steps to creating a YouTube video,

including research, scripting, recording, editing, audio mixing, thumbnail creation, and uploading.

Id. For some particularly passionate perfectionists, this process can take anywhere from days to

weeks. Id. On average, roughly seven hours of work is needed to create one to five minutes of video

content. Id.

4. See Nick Statt, YouTube Gaming Had Its Best Year Ever with More Than 100 Billion

Hours Watched, V

ERGE (Dec. 8, 2020, 2:43 PM),

https://www.theverge.com/2020/12/8/22163728/youtube-viewers-100-billion-hours-gaming-videos-

2020 [https://perma.cc/NE3C-LN5T] (showing a YouTuber whose follower base increased expo-

nentially in a few short years).

5. See Katharine Trendacosta, Unfiltered: How YouTube’s Content ID Discourages Fair Use

and Dictates What We See Online, E

LEC. FRONTIER FOUND. (Dec. 10, 2020),

https://www.eff.org/wp/unfiltered-how-youtubes-content-id-discourages-fair-use-and-dictates-what-

we-see-online [https://perma.cc/CFZ4-BHQN], for a discussion on how YouTube’s Content ID

system invokes fear within content creators and discourages them from challenging copyright

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decided that your video violated copyright through its automated screen-

ing system.

Within mere hours, your video is taken down—all of that

hard work, now futile.

To make matters worse, YouTube, the platform

that houses all of your content, has decided to impose a “copyright

strike”

against your channel.

You reach out to the website to fight this copyright infringement

claim, only to be met with radio silence.

Instead, it is the copyright

holder who steps in, leaving the same entity that filed a claim against

strikes. Going a step further, Trendacosta also discusses how YouTube has leveraged fear of the law

to discourage video creators from challenging Content ID. Id.

6. See Julia Alexander, YouTubers and Record Labels Are Fighting, and Record Labels

Keep Winning, V

ERGE (May 24, 2019, 10:37 AM),

https://www.theverge.com/2019/5/24/18635904/copyright-youtube-creators-dmca-takedown-fair-

use-music-cover [https://perma.cc/QYW3-QGB6] (“YouTube is obligated to take down copyrighted

content that’s been uploaded by users, with little incentive to question ambiguous cases once

they’ve been identified by a label.”); see also Lindsay Dodgson, YouTube Channels Are Being Held

Hostage with False Copyright Claims, but the Platform’s Hands Are Tied, BUS. INSIDER (June 2,

2020, 11:16 AM), https://www.insider.com/youtubers-channels-are-being-held-hostage-with-fake-

the incoming strike is in the wrong.”).

7. What Is YouTube?, GCFGLOBAL, https://edu.gcfglobal.org/en/youtube/what-is-youtube/1

[https://perma.cc/A387-EG3F] (last visited Apr. 15, 2024). YouTube is a popular free-to-use

video-sharing platform where individuals can both create and watch videos. Id.

8. See Peter Balonon-Rosen & Kimberly Adams, YouTube and Content Creators Clash Over

the Platform’s Automated Copyright Tool, M

ARKETPLACE (Nov. 22, 2022),

https://www.marketplace.org/shows/marketplace-tech/youtube-and-content-creators-clash-over-the-

platforms-automated-copyright-tool [https://perma.cc/Q6YY-QST3] (“YouTube, and its owner,

Google, have an automated technology called Content ID that regularly scans for copyrighted mate-

rial—including music—and flags it for copyright holders.”); see also Trendacosta, supra note 5

(“[V]ideos uploaded to YouTube are scanned against a database of files that have been submitted by

rightsholders. . . . A Content ID claim occurs when the automated algorithm that powers Content ID

detects a match between a YouTuber’s video and the database of material submitted by rightshold-

ers.”).

9. Alejandro Medellin, Why Did YouTube Take Down My Video?, VIDEVO (June 21, 2022),

https://www.videvo.net/blog/why-did-youtube-take-down-my-video [https://perma.cc/V3HG-

MKB7] (“[The Digital Millennium Copyright Act of 1998 (“DMCA”)] gives copyright owners the

power to request YouTube to remove videos that infringe on their intellectual property rights.

YouTubers know this process as a DMCA takedown.”).

10. Copyright Strike Basics, YOUTUBE HELP,

https://support.google.com/youtube/answer/2814000 [https://perma.cc/TT48-P3BD] (last visited

Apr. 15, 2024) (“If you get a copyright strike, it means that a copyright owner submitted a legal

request is submitted to [YouTube], it reviews the request. If the removal request is valid, [YouTube]

has to remove your video . . . to comply with copyright law.”); Trendacosta, supra note 5.

11. Trendacosta, supra note 5 (expounding on how “getting three copyright strikes . . . within

[ninety] days will lead to a creator losing their account, having all their videos removed, and losing

the ability to make new channels”).

12. Dodgson, supra note 6 (presenting an anecdote from an interviewee who said: “I reached

out to YouTube about [their copyright strike] and they said they’d look into it and I never heard

anything again”).

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you to decide whether your work is fair use.

Realizing that your liveli-

hood rests on less stable grounds than initially thought, you begin to

wonder if you are willing to continue down this path without protec-

tion.

After conducting research into ways to protect your future work,

you hit a wall: there is no binding authority on the intersection between

Let’s Play videos and copyright.

All that is left are questions and un-

certainty . . . . Now what?

Many YouTubers have found a career through streaming or record-

ing gameplay of video games while providing entertaining or insightful

commentary.

It is an incredibly popular video format, dubbed “Let’s

Play.”

Most video game developers know better than to dismiss the

power of Let’s Play videos, as they draw in millions of viewers from

around the world.

One of the most popular Let’s Players, known as

PewDiePie, has surpassed 111 million subscribers and has an estimated

cumulative total of over twenty-nine billion video views.

Wary of their

power, video game developers sit on the fence when it comes to their

13. See Trendacosta, supra note 5 (“A big problem . . . is the appeals process. Where if you

say, ‘No, this is fair use,’ the person who holds the copyright gets to decide if it is fair use . . . .”).

14. See Julia Alexander, YouTube CEO Addresses Top Creator Issues Including Copyright

Claims and Trending Section, V

ERGE (Apr. 30, 2019, 5:00 PM),

https://www.theverge.com/2019/4/30/18524426/youtube-ceo-creators-copyright-claims-

infringement-trending-section-comments [https://perma.cc/GK4J-RL7B]. The most forefront con-

cern for the content creator community on YouTube is the copyright claims system. Id.; Patrick

Klepek, YouTube’s Approach to Copyright Claims Could Scare Off Streamers, K

OTAKU (Aug. 26,

2015), https://kotaku.com/youtubes-approach-to-copyright-claims-could-scare-off-s-1726757133

[https://perma.cc/KC3Y-VTR7].

15. Howard S. Chen, Note, Gameplay Videos and Fair Use in the Age of Tricks, Glitches and

Gamer Creativity, 25

B.U. J. SCI. & TECH. L. 675, 679 (2019) (“Currently, there is no case law on

Is Playing Video Games on YouTube a Copyright Infringement? No One Wants to Find Out, CBC

NEWS (Oct. 7, 2017, 5:00 AM), https://www.cbc.ca/news/entertainment/youtube-gaming-

pewdiepie-fair-use-1.4309312 [https://perma.cc/JH42-XZAG].

16. See Dodgson, supra note 6 (quoting an interviewee who stated, “I’m very grateful to

YouTube for being the platform that’s given me my career . . . . But being a creator, even after

growing a sizeable audience, is a constant guessing game”).

17. See Christopher Zoia, This Guy Makes Millions Playing Video Games on YouTube,

TLANTIC (Mar. 14, 2014), https://www.theatlantic.com/business/archive/2014/03/this-guy-makes-

millions-playing-video-games-on-youtube/284402 [https://perma.cc/M4EQ-ZFNV] (showing ex-

amples of how successful a content creator of this genre can be).

18. See id.

19. See Laura Hudson, Using YouTube as an Accelerant for Video Games, N.Y. TIMES (Aug.

16, 2017), https://www.nytimes.com/2017/08/16/technology/personaltech/using-youtube-as-an-

accelerant-for-video-games.html [https://perma.cc/GBM2-U55G].

20. Chen, supra note 15, at 676 n.3 (“Felix Kjellberg, known online as PewDiePie, is . . . one

of YouTube’s most popular content creators . . . .”); PewDiePie, Y

OUTUBE,

https://www.youtube.com/user/pewdiepie [http://perma.cc/X75T-5NZ5] (last visited Apr. 15, 2024)

(showing that PewDiePie has over 111 million subscribers and over twenty-nine billion views on

YouTube as of April 2024).

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general tolerance toward Let’s Play videos, which blatantly post or

stream their allegedly copyrighted content.

If game developers perse-

cute content creators too harshly, there is a huge community backlash.

If they are too lenient, they fear suffering monetary losses.

Currently, content creators are offered very little protection for their

work.

The average YouTube Let’s Player is held at the whims of these

developers, and their content is only offered protection from

takedowns

when those same companies feel benevolent enough to

grant it.

Whether a Let’s Player’s content stays up or comes down

hinges largely on the developer’s preferences.

For example, Nintendo

has been incredibly strict with its copyrighted games, subjecting Let’s

Play videos featuring their products to intense scrutiny.

On the other

hand, developers like Microsoft and Ubisoft are more lenient, as long as

Let’s Play creators follow their outlined restrictions for game usage.

However, little protection exists outside the grants of the developers, and

the fair use doctrine is ill-equipped to handle YouTube as it stands.

Content creators need the tools to protect their own work, and it is

high time for the fair use doctrine to catch up and accommodate them.

21. Megan Carriker, Are Let’s Play Videos Legal?, ODIN L. & MEDIA (Jan. 31, 2018),

https://odinlaw.com/are-lets-play-videos-legal [https://perma.cc/2B7W-JRZD].

22. See Andy Chalk, Firewatch Is Getting Review-Bombed on Steam, PC GAMER (Sept. 12,

2017), https://www.pcgamer.com/firewatch-is-getting-review-bombed-on-steam

[https://perma.cc/V5Y3-ZBAT] (“Firewatch developer Campo Santo . . . disassociate[d] itself with

[a] streamer by filing a DMCA takedown notice against all of his Firewatch content. . . . [T]hat in

turn has resulted in a thorough and ongoing review-bombing campaign against the game on

Steam.”); see also Deconstructing Let’s Play, Copyright, and YouTube Content ID Claim System: A

Legal Perspective, IE

L. GRP. (July 14, 2020), http://ielawgroup.net/lets-play

[https://perma.cc/58AZ-FBNJ] (“Nintendo for instance, after receiving backlash on their [Creators]

Program, has reexamined their official stance regarding the matter to allow for more flexibility

amongst the streaming community . . . and have even gone as far as to allow their content in Let’s

Play videos as supported by their updated Content Guidelines.”).

23. See Hudson, supra note 19.

24. See Trendacosta, supra note 5; Carriker, supra note 21.

25. Learn About Scheduled Copyright Takedown Removal Requests, YOUTUBE HELP,

https://support.google.com/youtube/answer/9167045?hl=en [https://perma.cc/U6WC-6ADP] (last

visited Apr. 15, 2024). Defining a takedown, YouTube explains:

If a copyright owner finds their copyright-protected content on YouTube without their

permission, they can submit a copyright removal request. As part of this process, they

may select the option to schedule the removal of the copyright-protected content. This

means, after YouTube validates the removal request, the uploader is given [seven] days

to take action before a copyright strike is applied to their channel.

Id.

26. Carriker, supra note 21.

27. See id.

28. See id.

29. See id.

30. See infra Part II.E.

31. See infra Part II.E.

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However, content creators and game developers cannot be left to sit in

ambiguity waiting for that day to come.

A reasonable and feasible

remedy rests within a blanket licensing scheme.

By implementing such

a scheme, content creators, such as Let’s Players, will hopefully add a

tool to their arsenal when it comes to protecting both their content and

themselves.

A Let’s Player will usually add content of their own to the video

game footage they post, whether it be editing, scripted dialogue, narra-

tion, or general walkthrough strategies.

Many of them believe that min-

imal commentary and the addition of their personal content will shield

them from allegations of copyright infringement under the fair use doc-

trine.

It is a widely but falsely held notion because Let’s Play videos

are most likely not protected under the fair use doctrine.

Generally speaking, the fair use doctrine is an affirmative legal de-

fense “that promotes freedom of expression by permitting the unlicensed

use of copyright-protected works in certain circumstances.”

However,

there is no set formula for determining whether the fair use doctrine ap-

plies to a given use of copyrighted material.

Instead, a court must bal-

ance four factors: (1) purpose and character of the use; (2) nature of the

work; (3) amount copied; and (4) market effects.

Because each case

turns on an analysis of the specific facts involved, there is neither a set

nor predetermined amount of usage that will guarantee a “fair use” de-

termination by courts.

Although flexible in nature, the fair use doctrine

was established in 1976, well before everyday computer technology and

32. Ore, supra note 15.

33. See infra Part IV.B.

34. See infra Part IV.B.

35. Elizabeth Brusa, Comment, Professional Video Gaming: Piracy That Pays, 49 J.

MARSHALL L. REV. 217, 220 (2015) (“[V]ideo gamers . . . add[] voice overs, transpos[e] the video

gameplay onto a new medium, and uniquely edit[] the content to create walk-throughs and tutori-

als.”).

36. See Zoia, supra note 17 (“Players often face such threats of legal action. Although their

videos help promote companies like Nintendo, and Let’s Players argue that they’re protected by fair

use, the gaming industry isn’t thrilled about Let’s Players siphoning ad dollars from its intellectual

property. . . . [P]layers believe that because they repurpose an original work, they should be allowed

to continue.”).

37. See id.

38. U.S. Copyright Office Fair Use Index, U.S. COPYRIGHT OFF.,

https://www.copyright.gov/fair-use [https://perma.cc/Y2RD-ABH9] (Nov. 2023).

39. See id. (“Courts evaluate fair use claims on a [case-by-case] basis, and the outcome of any

given case depends on a fact-specific inquiry. This means that there is no formula . . . .”).

40. 17 U.S.C. § 107.

41. U.S. Copyright Office Fair Use Index, supra note 38 (explaining that “there is no formula

to ensure that a predetermined percentage or amount of a work—or specific number of words, lines,

pages, copies—may be used without permission”).

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the internet.

Like many other legal doctrines before it, it has fallen vic-

tim to the passage of time.

Technology has rapidly evolved at an

alarming rate, and now the fair use doctrine exists in a technological era

that surpasses even what its drafters could surmise.

As it was codified,

and currently stands, the fair use doctrine cannot meet modern problems

presented by internet platforms like YouTube.

To start, the purpose, character, and nature of Let’s Play videos are

all indicative of copyright infringement as opposed to fair use.

These

videos display the full breadth of games to large audiences who have not

paid the developer for entertainment; simultaneously, the Let’s Player

can generate advertising proceeds as well as revenue from potential

sponsors.

As to the amount of copyrighted material used, typically, it is

a full game from start to finish.

Many viewers develop a sense of in-

vestment and prefer YouTube channels that feature entire games as op-

posed to parts of one.

Recording and publicly posting such large seg-

ments of copyrighted material most likely goes beyond what any court

has found to constitute fair use so far.

However, no exact threshold ex-

ists because courts tend to reject categorical rules regarding the amount

42. § 107 (original version at Pub. L. No. 94-553, § 107, 90 Stat. 2541, 2546 (1976)); U.S.

the nineteenth century and codified in the 1976 Copyright Act.”).

43. See Kevin Davis, Comment, Fair Use on the Internet: A Fine Line Between Fair and

Foul, 34 U.S.F.

L. REV. 129, 132 (1999).

44. See id.

45. See infra Part II.E.

46. § 107. Because the factors of section 107 seem to weigh against Let’s Plays, they are most

likely not protected by fair use. Id.; see also Chen, supra note 15, at 686-89; Conrad Postel, “Let’s

Play”: YouTube and Twitch’s Video Game Footage and a New Approach to Fair Use, 68

ASTINGS L.J. 1169, 1173 (2017).

47. Alexander Lee, Everything You Need to Know About PewDiePie, G FUEL (Jan. 15, 2021),

https://perma.cc/G8QW-TYHT (highlighting and listing several sponsorships for the famous Let’s

Player PewDiePie). The list includes many well-known brands, such as Razer, and even YouTube

itself. Id.

48. See Markiplier, Superliminal (FULL GAME), YOUTUBE (Nov. 18, 2020),

https://www.youtube.com/watch?v=F8jIP5SX5Kg&ab_channel=Markiplier

[https://perma.cc/P67G-UJZT]. This is one of Markiplier’s many videos that cover the full length of

a game. Id.

49. See Postel, supra note 46, at 1173-74.

50. Video Game Story Time, Why YouTube Let’s Plays Are Technically Illegal, YOUTUBE, at

02:47 (Nov. 13, 2020),

https://www.youtube.com/watch?v=iSWgdhIKX1I&ab_channel=VideoGameStoryTime

[https://perma.cc/WP3G-WBWP]; Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 179 (2d

Cir. 2018) (“While ‘courts have rejected any categorical rule that a copying of the entirety cannot be

a fair use,’ ‘a finding of fair use is [less] likely . . . when the copying is extensive, or encompasses

the most important parts of the original.’”) (quoting Authors Guild v. Google, Inc., 804 F.3d 202,

221 (2d Cir. 2015)).

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of copyrighted work used.

To further complicate matters, there is cur-

rently no case law analyzing the intersection between copyright law and

gameplay videos.

Lastly, market effects, which vary across different

game types, deserve consideration alongside other circumstances.

Be-

cause of these factors, this Note will argue that Let’s Plays currently do

not fall under the fair use doctrine.

Part II explores what makes Let’s Plays popular and successful, as

well as the circumstances in which they exist.

This includes back-

ground information on YouTube as a platform,

what constitutes a Let’s

Play,

and what has led to its prosperity.

This Part also examines game

developers and their dynamics with Let’s Players.

Finally, Part II pro-

vides historical and present-day information about the fair use doctrine.

Part III begins with an analysis of how the Supreme Court would most

likely analyze Let’s Plays under the fair use doctrine.

After considering

each factor of the fair use doctrine, this Note concludes that the Court

would look unfavorably upon Let’s Plays.

However, this ultimately

highlights the issue at hand.

It demonstrates the need for alternative

methods outside the fair use doctrine, so that new forms of media are not

analyzed under a dated doctrine that is not equipped to handle them.

Part IV proposes a solution—adopting a blanket licensing scheme.

That Part also explains how implementing a blanket license will help

and addresses counterarguments to those anticipated outcomes.

Part V

51. Fox News Network, 883 F.3d at 179 (quoting Authors Guild, 804 F.3d at 221).

52. Chen, supra note 15, at 679 (“Currently, there is no case law on copyright and gameplay

videos, which only increases their uncertain legal status.”); Ore, supra note 15.

53. Hudson, supra note 19 (“[V]ideos featuring a complete play-through of a game . . . can

potentially hurt sales, especially if the game is focused on a linear story.”).

54. See infra Part III.

55. See infra Part II. This Part covers external and contributory factors that created the ideal

environment for Let’s Play to gain the popularity it did. See infra Part II. While the content itself is

praiseworthy and deserving of the prosperity it enjoys, such prosperity is not gained through merit

alone. See infra Part II. Without the presence of outside considerations and other factors, Let’s Play

might never have gained the traction it did. See infra Part II.

56. See infra Part II.A.

57. See infra Part II.B.

58. See infra Part II.C.

59. See infra Part II.D.

60. See infra Part II.E.

61. See infra Part III.

62. See infra Part III.A–E.

63. See infra Part III.

64. See infra Part III.

65. See infra Part IV.

66. See infra Part IV.B.

67. See infra Part IV.C.

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concludes with a general recapitulation of the key considerations and re-

iterates the need for a solution in light of the pressing issue.

II.

LET’S PLAY LORE: UNVEILING THE ORIGIN STORY

Part II hones in on the media in question, Let’s Plays.

A Let’s

Play is a relatively new form of media, so understanding its impact and

cultural hold depends on understanding the circumstances that created its

seedbed.

Subpart A presents information about the platform that hosts

the most Let’s Plays, YouTube.

Subpart B focuses on what a Let’s

Play encompasses.

Subpart C then examines Let’s Plays and their rela-

tionship to YouTube.

Subpart D analyzes a different dynamic, looking

specifically at the history between game developers and Let’s Players.

Then, the focus shifts to the fair use doctrine.

Subpart E generally ad-

dresses the fair use doctrine,

its limits and shortcomings,

and how it

exists in an internet-centric era.

A. YouTube and the Extent of Its Popularity

YouTube is a wildly popular platform that, as of 2023, houses 2.5

billion active users worldwide,

who spend an aggregated amount of

one billion hours watching videos on the platform every single day.

With so many users spending so much time on the platform, YouTube

offers an incredible reach over large global audiences.

Thus, there is

68. See infra Part V.

69. See infra Part II.B–E.

70. See infra Part II.A–D. This Part is divided into two overarching topics for background

information purposes: Let’s Plays in general and the fair use doctrine. See infra Part II.A–D.

71. See infra Part II.A.

72. See infra Part II.B.

73. See infra Part II.C.

74. See infra Part II.D.

75. See infra Part II.E.

76. See infra Part II.E.

77. See infra Part II.E.1.

78. See infra Part II.E.2.

79. Maryam Mohsin, 10 YouTube Stats Every Marketer Should Know in 2022, OBERLO (June

20, 2023), https://www.oberlo.com/blog/youtube-statistics [https://perma.cc/SEQ6-UX2F] (defining

“[a]ctive YouTube [u]sers” as viewers who log in [at least once] each month”).

80. Id.

81. Id. (“YouTube is not only available but also localized in over 100 countries.”) (citation

omitted).

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plenty of room for new creators and great opportunities to earn advertis-

ing revenue from posted content.

All these factors ultimately attract new YouTube personalities with

a passion for their projects;

they often create fresh and unique content

that is unfettered by corporate strains.

They can speak freely without

scripted dialogue or major network censorship and have full control over

the direction of their content from start to finish.

These creators answer

solely to themselves and their audiences, while other personalities stuck

in the mainstream listen to agencies and managers.

Furthermore, tradi-

tional celebrities tend to act in accordance with public relations strate-

gies rather than free will, only driving home the beloved authenticity of

YouTube personalities.

As a result, YouTube personalities have earned

a special place in the public’s heart, while mainstream celebrities have

seen their hold slipping away.

As it stands, YouTube, and the content

creators it houses on its platform, have an ever-growing power over me-

dia as a whole.

YouTube is a service provider protected by the Digital Millennium

The safe harbor pro-

visions were codified by Congress as part of the DMCA.

They

82. See Zoia, supra note 17 (discussing several content creators on YouTube who receive ad

revenue, such as Matthew Varrone, who “makes between $600 and $1,000 a month in ad revenue

from his videos” at the young age of twenty).

83. See id. Let’s Players are driven to create their content based on several factors, including

their love of gaming. Id.

84. See Andrew Arnold, Why YouTube Stars Influence Millennials More Than Traditional

Celebrities, F

ORBES (June 20, 2017, 3:16 PM),

https://www.forbes.com/sites/under30network/2017/06/20/why-youtube-stars-influence-

millennials-more-than-traditional-celebrities [https://perma.cc/K7KM-N4G8]. There are key differ-

ences between traditional celebrities and YouTube celebrities, namely, the way that traditional ce-

lebrities are more beholden to being widely palatable. Id. Conversely, YouTube stars are not backed

by a corporate agenda, allowing them to be “goofy, funny, weird,” or outspoken on “touchy and

personal matters such as sex, divorce, domestic violence and racism.” Id.

85. See id.

86. See id.

87. Id. (“Traditional celebrities always seem to act according to their PR strategies rather than

free will, and people don’t relate to them. It can feel hard to understand where a carefully staged

image ends and the real person starts. . . . YouTube personalities, on the contrary, connect better

with people by being approachable and building intimate experiences with their viewers.”).

88. See id. (“Millennials are currently the largest consumer demographic with about $1.3 tril-

lion in buying power as at the end of 2015. This powerful demographic is a choice target for brands,

but millennials in large part don’t watch TV and don’t care much what mainstream celebrities have

to say about products or services.”).

89. See id.

90. Viacom Int’l, Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 123 (S.D.N.Y. 2013).

91. Handbook on Multiple Listing Policy, NAT’L ASS’N OF REALTORS (Jan. 1, 2024),

https://www.nar.realtor/handbook-on-multiple-listing-policy/participants-rights-section-16-digital-

millennium-copyright-act-safe-harbor-policy-statement-7-99 [https://perma.cc/R9UE-LJ8P]; see

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essentially grant copyright infringement exemptions to service providers

who ultimately transmit or store copyrighted data.

Specifically, 17

U.S.C. § 512 protects online service providers

in certain situations

where their users transmit or store copyrighted material through their

system or network.

If the criteria in the statute are met, then immunity

to actions for monetary relief is granted.

YouTube meets the statutory

criteria by “providing a notice and takedown remedy if a copyright own-

er alleges that the content in question was used without its authoriza-

tion.”

As long as it does this, it washes its hands relatively clean from

any contributory copyright infringement claims.

B. What Is a Let’s Play?

Some YouTube personalities have developed a following by post-

ing a genre of video known as “Let’s Plays.”

In these videos, a

YouTuber will usually record themselves playing a video game, and pair

it alongside footage of their actual gameplay.

Many of these creators

will incorporate their personal commentary and editing skills into their

uploaded videos.

100

The commentary is usually funny, insightful, witty,

or informative.

101

More often than not, the creator will also feature foot-

age of themselves in the corner of the screen, allowing the viewer to see

their real-time reactions to in-game stimuli.

102

The composition of these

videos is meant to recreate the feeling of playing a video game alongside

a friend, giving rise to the name of the genre.

103

also Davis, supra note 43, at 164-65 (“The Digital Millennium Copyright Act . . . is the most recent

legislation intended to modify copyright law in the face of new technologies.”).

92. Davis, supra note 43, at 165.

93. Handbook on Multiple Listing Policy, supra note 91 (explaining that “[c]ourts construe

the definition of ‘online service provider’ broadly”).

94. 17 U.S.C. § 512.

95. Id.

96. Jessica A. Magaldi et al., All’s Fair in Love and War but Nothing’s Fair Use on YouTube:

How YouTube Policies Favor Copyright Owners and Hinder Legal Fair Use, 27

J.L. BUS. & ETH.

51, 58 (2020).

97. Id.

98. See Jessica Vogele, Where’s the Fair Use? The Takedown of Let’s Play and Reaction

Videos on YouTube and the Need for Comprehensive DMCA Reform, 33

TOURO L. REV. 589, 592

(2017).

99. See id. at 591.

100. See Vogele, supra note 98, at 592; see also Dan Hagen, Fair Use, Fair Play: Video Game

Performances and “Let’s Plays” as Transformative Use, 13 W

ASH. J.L. TECH. & ARTS 245, 253

(2018).

101. Vogele, supra note 98, at 591.

102. Id.

103. Hagen, supra note 100, at 252.

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The genre “Let’s Play” is an unofficial one, and therefore what con-

stitutes a Let’s Play is somewhat unclear.

104

However, some distinguish-

ing characteristics set Let’s Plays apart from other video game con-

tent.

105

Let’s Play videos differ from live-streamed gameplay

performances like those on Twitch “because Let’s Play videos are curat-

ed.”

106

They are crafted with more intention and are even scripted on oc-

casion.

107

A “live stream,”

108

on the other hand, is completely unedited

and performed in front of a virtual audience.

109

Some content creators upload footage of just gameplay alone, with

neither edits nor commentary, known as a “long play.”

110

These videos

lack any real input from the content creator and therefore lack any modi-

fication that the fair use doctrine seeks out.

111

Others add commentary

solely to explain certain video game mechanics or instruct others on how

to complete parts of a game, often called a “walkthrough.”

112

Occasion-

ally, a walkthrough video shows how to complete the entirety of a

game.

113

These videos tend to have an educational quality to them, as

104. See id. at 250-54 (describing different types of videos showcasing gameplay experiences,

including conventional Let’s Plays and streams).

105. See id. at 247 (“Though the lines are not defined with perfect clarity, a Let’s Play video is

typically understood as a recording of a gameplay performance, in contrast to a gameplay ‘stream’

which is a live transmission of a that [sic] performance as it is happening.”).

106. Carriker, supra note 21; What Is Curated Content and the Best Practices to Follow?,

OCK CONTENT (Jan. 29, 2022), https://rockcontent.com/blog/what-is-curated-content

[https://perma.cc/ANR3-LY7D] (defining curated content as “the process of selecting content from

other sources to share on your channels . . . includ[ing] the process of searching, discovering, gath-

ering, organizing, and presenting that content to your audiences”).

107. Carriker, supra note 21.

108. Live Streaming, PARENT ZONE (Nov. 15, 2023), https://parentzone.org.uk/article/live-

streaming [https://perma.cc/T28P-G5RR] (“Live streaming is the broadcasting of real-time, live

video to an audience over the internet. . . . [T]here is no editing process and viewers can follow

along and comment in real-time.”).

109. Carriker, supra note 21.

110. See Hagen, supra note 100, at 250-51; e.g., Loopy Longplays, The Elder Scrolls IV:

Oblivion—Longplay (Main Quest) Walkthrough (No Commentary), Y

OUTUBE (May 29, 2019),

https://www.youtube.com/watch?v=LM1IwZdpL2Y&ab_channel=LoopyLongplays

[https://perma.cc/VC9L-CZGA] (showing an example of an eight-hour-long “long play” video fea-

turing only gameplay and no commentary).

111. See Hagen, supra note 100, at 250-51; see also U.S. Copyright Office Fair Use Index,

supra note 38 (explaining that the fair use doctrine favors modifications that constitute “‘transform-

ative’ uses,” namely “those that add something new, with a further purpose or different character,

and do not substitute for the original use of the work”).

112. See Vogele, supra note 98, at 591; see also Hagen, supra note 100, at 251.

113. See, e.g., Hopezera Gaming, Cult of the Lamb—Full Game Walkthrough Gameplay,

OUTUBE (Aug. 14, 2022),

https://www.youtube.com/watch?v=D_OKB0STc0Y&ab_channel=HopezeraGaming

[https://perma.cc/6TEK-ZZY8]. This video shows how to complete most, if not all, in-game activi-

ties. Id. This includes demonstrations on how to acquire some in-game items, how to defeat certain

in-game enemies, and how to complete certain in-game tasks. Id.

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their main purpose is to teach.

114

However, both of these video types are

usually accepted as separate from Let’s Plays within the YouTube com-

munity.

115

Unlike “long plays” and “walkthroughs,” Let’s Plays are

more subjective in nature and differ according to each creator’s individ-

uality and creativity.

116

C. The Prominence of Let’s Plays and Their Hold on YouTube

Let’s Plays have been a dominant and stable genre on YouTube for

many years now,

117

becoming a multi-million dollar industry on the vid-

eo platform since its inception.

118

By some estimates, fifteen percent of

all videos posted to YouTube concern video games.

119

Viewers watched

over 100 billion hours of this type of content in 2020 alone.

120

This was

a roughly 100% increase in viewership from 2018, indicating that the

Let’s Play genre is growing.

121

One such example of viewership growth

comes from the Let’s Player Dream, who saw channel subscriptions

surge from one million to over thirteen million in just ten months.

122

Video game content creators are some of YouTube’s most success-

ful users.

123

In 2020, YouTube reported that it had an astonishing forty

114. Hagen, supra note 100, at 251.

115. See Vogele, supra note 98, at 591-92.

116. See Carriker, supra note 21.

117. See Chen, supra note 15, at 676 (“[R]ecent data shows that these recordings (‘gameplay

videos’) drew more online viewers than HBO, Netflix, and Hulu combined.”); see also Rob Fahey,

Gaming YouTube Must Get Its House in Order, G

AMESINDUSTRY.BIZ (Sept. 15, 2017),

https://www.gamesindustry.biz/gaming-youtube-must-get-its-house-in-order

[https://perma.cc/J9NK-HF2M] (“Some of gaming YouTube’s most popular channels can attract

millions if not tens of millions of views for popular videos . . . .”).

118. Natalie Marfo, Playing Fair: YouTube, Nintendo, and the Lost Balance of Online Fair

Use, 13 B

ROOK. J. CORP. FIN. & COM. L. 465, 465-66 (2019) (“Thus, the genre grew on YouTube,

and produced with it a multi-million dollar industry.”); see Zoia, supra note 17; see also Dougie

Gerrard, Let’s Play: How YouTubers Are Making Millions Playing Video Games, C

ITY A.M. (July

25, 2019, 7:40 AM), https://www.cityam.com/lets-play-how-youtubers-are-making-millions-

playing-video-games [https://perma.cc/H5Z9-XQL7] (“YouTube funding is less straightforward,

but the most popular creators can become eye-poppingly wealthy, especially once sponsors catch

on. PewDiePie is worth somewhere between [$35 million to $50 million]; Markiplier, only the

[fifty-third] most-subscribed YouTuber, has around [$24 million] to his name.”).

119. Bree Brouwer, 15% of All Videos on YouTube Are About Video Games, TUBEFILTER

(Dec. 19, 2014), https://www.tubefilter.com/2014/12/19/15-percent-youtube-videos-video-game

[https://perma.cc/6MJS-R9P5]. These estimates are based on Tubular’s assessments of statistics

released by the YouTube analytics company. Id.

120. Statt, supra note 4.

121. See id.

122. See id.

123. See Caroline Womack, Note, Revenge of the Retaliatory Takedown: Let’s Plays, Fair

Use, and an Unstable DMCA, 37 Q

UINNIPIAC L. REV. 757, 758 (2019) (“In 2015, Felix Kjellberg

[PewDiePie] was ranked by Forbes as the highest paid ‘YouTube Star’ of the year, having earned

fifteen million dollars over the course of 2016.”); see also Madeline Berg, The Highest-Paid

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million active gaming channels.

124

Out of the top five YouTube channels

with the most subscribers worldwide, two are gaming-related.

125

Even

more notable, in 2021, Forbes disclosed that half of the ten

highest-earning creators on YouTube centered their content on video

games, with some of the most popular gamers earning roughly more than

ten million dollars a year.

126

As a result, video game content has become a reliable source of in-

come for YouTube.

127

YouTube allows creators to monetize their con-

tent, from which it takes a cut of the profits.

128

Advertisers typically pay

for placement in a video on a per-view basis.

129

However, video views

are not the same as advertisement views.

130

Because tools like

ad-blockers

131

exist, generally “half of [a creator’s] views across the

board will be monetized.”

132

For popular Let’s Play channels like

PewDiePie, even one dollar per thousand video views can result in a

huge revenue

133

stream when the channel’s subscriber base exceeds

eighty million people.

134

While fifty-five percent of the net advertise-

ment revenue goes to the content creators, YouTube retains the

YouTube Stars 2016: PewDiePie Remains No. 1 with $15 Million, FORBES (Dec. 5, 2016, 2:20 PM),

https://www.forbes.com/sites/maddieberg/2016/12/05/the-highest-paid-youtube-stars-2016-

pewdiepie-remains-no-1-with-15-million [https://perma.cc/U82K-YAWZ].

124. Statt, supra note 4.

125. Ekaterina Petrova & Netta Gross, 4 Reasons People Watch Gaming Content on YouTube,

HINK WITH GOOGLE (June 2017), https://www.thinkwithgoogle.com/marketing-

strategies/video/statistics-youtube-gaming-content [https://perma.cc/U6SV-LGXS].

126. Elad Schulman, How Much Gamers Make on YouTube?, THOUGHT LEADERS (June 5,

2023), https://www.thoughtleaders.io/blog/how-much-gamers-make-on-youtube

[https://perma.cc/37FU-X4DD].

127. See Marfo, supra note 118, at 469 (“YouTube profited from hosting the popular content

on their domain . . . .”).

128. Maddie Martin, How Much Money Do You Get Per View on YouTube? (2024 Stats),

HINKIFIC (Dec. 22, 2023), https://www.thinkific.com/blog/youtube-money-per-view

[https://perma.cc/E2CM-XLHV].

129. See id. Martin explains the monetization system on YouTube as follows:

In general, your CPM (cost per thousand views) can range between $4 and $24 (depend-

ing on your region and industry). But remember that 1,000 video views are not the same

as 1,000 ad views. A good rule of thumb is assuming that only half of your views across

the board will be monetized. For example, somewhere around $5-7 per 1,000 views

would be the average across all industries.

Id.

130. See id.

131. How to Detect Ad Blockers, PUBLIFT, https://www.publift.com/blog/ad-blockers

[https://perma.cc/7RWY-2KP9] (Feb. 9, 2024) (“Ad blockers are browser extensions or plugins that

disable ads on specific web pages. An ad blocker works by blocking communications to ad servers

and then hiding the elements of the web page that are designed to display advertising content.”).

132. See Martin, supra note 128.

133. See Zoia, supra note 17 (“PewDiePie’s estimated monthly revenue from YouTube ads

fluctuates between $140,000 and $1.4 million depending on viewership . . . .”).

134. Womack, supra note 123, at 762.

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remaining forty-five percent.

135

All these factors have led some to say

that “[g]aming is YouTube’s bread and butter.”

136

In turn, many have started to wonder whether YouTube is treating

Let’s Plays differently than other videos on its platform, as certain cir-

cumstances suggest.

137

For example, while a video containing a few

minutes of either a copyrighted movie or song can be taken down from

YouTube almost immediately, a Let’s Player can usually post hours of

video game content without facing a take-down.

138

However, this is

more likely the result of what some have called “tacit” permission from

game developers.

139

It is unlikely that this is an act of benevolence to-

ward Let’s Players; instead, this choice probably concerns the benefits

that game developers can also derive from this arrangement, as well as

the disadvantages they might suffer should they shun the Let’s Play

community.

140

D. Video Games and Their Developers

A large majority of the games that Let’s Play YouTubers cover in

their videos are copyrighted.

141

These games are usually produced by

developers that expect consumers to pay for the product they painstak-

ingly created.

142

When this expectation is not met, it leads to disap-

pointment, and eventually, frustration.

143

This feeling only becomes ex-

acerbated when developers realize that millions of people are still

enjoying the games they made, but someone else entirely is profiting

135. Marfo, supra note 118, at 468-69; Martin, supra note 128.

136. Ore, supra note 15; see also Womack, supra note 123, at 762 (“The mass-viewership of

these content creators also serves as a benefit for YouTube.”).

137. See, e.g., Ore, supra note 15 (“Video games are rarely treated the same way as other copy-

righted entertainment media.”). While other copyright holders are quick to protect their intellectual

property, game companies behave differently when it comes to their games. Id.

138. Id.

139. Fahey, supra note 117 (explaining that most game companies “turn[] a blind eye out of

consideration of the promotional value of being featured on high-audience channels”).

140. See id.

141. See Video Game Story Time, supra note 50.

142. See Gabe Carey, Why Pay to Play When You Can Watch for Free? How YouTube Burns

Indie Developers, D

IGIT. TRENDS (Mar. 28, 2016), https://www.digitaltrends.com/gaming/that-

dragon-cancer-and-lets-play-dispute [https://perma.cc/D3ME-M89T]. This article includes an inter-

view with Ryan Green, creator of the indie game That Dragon, Cancer, who stated:

“That Dragon, Cancer was created by a studio of eight, and for many of us it was a

full-time effort that involved thousands of hours of work . . . . This huge effort required

taking on investment, and we decided to pay off all our debt as soon as possible.”

Id.

143. See Marfo, supra note 118, at 469 (“Game developers became ‘frustrated by the millions

of people watching their game on YouTube.’”).

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from it.

144

As a result, some developers have started to harbor resentment

toward Let’s Players, who they feel “make revenue off [developers’]

work.”

145

In an act of defiance, some have gone so far as to completely

prohibit any posting of footage of their games by third parties like Let’s

Players.

146

Some companies with stringent policies made it a point to take ac-

tion against content creators who featured their games.

147

Nintendo, for

example, launched a particularly infamous campaign against the Let’s

Play community, asserting that its copyrights were being infringed upon,

and thus, that it was owed compensation.

148

To begin its crusade, Nin-

tendo attempted to claim all advertising revenue from the content that

featured its games, essentially demonetizing it for the Let’s Player.

149

the time, game developers still underestimated the power behind the

Let’s Play community.

150

The situation quickly changed following the

massive backlash that ensued shortly after.

151

Nintendo was widely criti-

cized by content creators and fans alike.

152

Nintendo, trying to alleviate

some of the tensions created by its campaign, opted to develop what was

known as the Creators Program.

153

Equally controversial with the gam-

ing community for the strains it put on content creators, Nintendo shut

down the program three short years later.

154

Few foresaw that the mono-

lithic game developer

155

would be sent backtracking by the budding

community.

156

144. Id.

145. Carey, supra note 142.

146. James Puddington, Note, Fair Play: Economic Justifications for Applying Fair Use to the

Online Streaming of Video Games, 21

B.U. J. SCI. & TECH. L. 413, 417 (2015).

147. Carriker, supra note 21 (“Nintendo, for example, has historically asserted that they retain

the copyright on their games and have requested Let’s Play videos to be taken down as they violate

their copyright.”).

148. Marfo, supra note 118, at 469.

149. Id. at 469, 483.

150. Id.

151. Emma Kent, Nintendo Scraps Controversial Creators Program, Making Life Easier for

YouTubers, E

UROGAMER (Nov. 29, 2018), https://www.eurogamer.net/nintendo-scraps-creators-

program-making-life-much-easier-for-youtubers [https://perma.cc/AM38-5MFR].

152. See id.

153. Id. (detailing how ineffective the Creators Program was, because “[w]hen it was launched,

approval services were overwhelmed . . . YouTubers who wanted their entire channel approved

were asked to remove any non-Nintendo videos first [and] YouTubers who didn’t join the program

had their videos demonetised, while those who did, saw their revenue significantly reduced”).

154. Id.

155. Marfo, supra note 118, at 483 (“Nintendo is one of the world’s oldest, largest and most

well-known video game creators . . . .”).

156. Kent, supra note 151 (“Nintendo is finally shutting down its controversial Creators Pro-

gram after three rocky years packed with criticism from YouTubers.”).

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However, not all game developers feel spurned by the Let’s Play

community.

157

Many developers, especially smaller ones, feel that being

featured on one of these channels brings about great exposure.

158

Fur-

thermore, they recognize that Let’s Play channels provide fertile grounds

for growing a community and a following around their games.

159

In fact,

over fifty percent of gamers who also use YouTube say that they connect

with their gaming communities over the video platform.

160

As a result,

an interesting symbiotic relationship has flourished between video game

developers and Let’s Players.

161

Larger developers, such as Blizzard,

have even granted third parties like Let’s Players express permission to

use gameplay footage.

162

Currently, large developers and small develop-

ers alike agree that being scouted, and eventually featured, by content

creators is one of the easiest and cheapest ways to market a game.

163

Let’s Players not only attract people to begin talking about a particular

game, but they also foster communities that keep talking about it.

164

E. Fair Use Doctrine

A plaintiff seeking to establish copyright infringement must prove

two elements: “(1) ownership of a valid copyright, and (2) [that the de-

fendant] cop[ied] . . . constituent elements of the work that are origi-

nal.”

165

In contrast, “fair use” is an affirmative defense asserted by de-

fendants who are accused of copyright infringement.

166

It ultimately

prevents a copyright holder from having exclusive and complete control

157. Puddington, supra note 146, at 417.

158. Morgan Shaver, How YouTube Let’s Players Help Indie Developers, ALL GAMERS (Sept.

28, 2016), https://ag.hyperxgaming.com/article/1906/how-youtube-lets-players-help-indie-

developers [https://perma.cc/S52E-JF4E] (“[Let’s Players provide] a critical form of free promotion

and marketing for an indie developer who may not have the means to put their game in front of an

audience of millions.”).

159. See Petrova & Gross, supra note 125 (“By connecting socially through ‘let’s plays,’

walk-throughs, reaction videos, and reviews, gamers get the chance to double their love for the ac-

tivity, for their favorite games, and for the gaming scene overall.”).

160. Id.

161. See Alanah Pearce, Developers Say Twitch Is Hurting Single-Player Games, IGN (June

19, 2018), https://www.ign.com/articles/2018/06/19/developers-say-twitch-is-hurting-single-player-

games [https://perma.cc/PM2B-GVC7] (“For those third-party publishers, the relationship between

content creators and game development is an interesting one, in that grabbing the attention of con-

tent creators is one of the easiest, cheapest ways to market games right now, according to two anon-

ymous sources from Ubisoft and three independent developers.”).

162. Puddington, supra note 146, at 417.

163. See Pearce, supra note 161.

164. See id.; see also Petrova & Gross, supra note 125.

165. Vogele, supra note 98, at 601.

166. Brusa, supra note 35, at 231.

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over their copyrighted work.

167

This is achieved by allowing the use of

copyrighted work without permission from the copyright owner for lim-

ited purposes.

168

The legislature, through section 107 of the Copyright

Act, intended to balance the interests of copyright holders with the inter-

ests of the general public.

169

However, the concept of fair use in com-

mon law dates as far back as the eighteenth century.

170

The goal then

was not dissimilar to the goal now: prevent the rigid application of copy-

right law, so that we might avoid the complete suppression of creativity,

while still protecting intellectual property.

171

Even though this goal is historic in nature, the Supreme Court still

issues major decisions clarifying and reaffirming the fair use doctrine,

doing so regularly since its codification in 1976.

172

In 2021, the Court

issued one of its most recent fair use decisions in Google LLC v. Oracle

America, Inc.

173

The Court found that Google’s copying of Sun Java

API,

174

a vast library of prewritten code for carrying out complex pro-

gramming, was an instance of fair use.

175

This decision prevented a re-

sult that many experts feared could have had an industry-wide “chilling

effect”

176

on creativity in software development.

177

Ultimately, the Court

maintained a favorable outcome for fair use, reaffirming that it is part of

our law, and also reaffirming that Congress intended it to be so.

178

167. Vogele, supra note 98, at 601.

168. Rich Stim, Measuring Fair Use: The Four Factors, STAN. LIBRS.,

https://fairuse.stanford.edu/overview/fair-use/four-factors [https://perma.cc/VG8C-JN52] (last visit-

ed Apr. 15, 2024).

169. Brusa, supra note 35, at 231.

170. Gyles v. Wilcox (1740) 26 Eng. Rep. 489, 490 (Ch.) (establishing the doctrine of fair

abridgment, which would later become the foundation for the fair use doctrine).

171. Iowa State Univ. Rsch. Found. v. ABC, 621 F.2d 57, 60 (2d Cir. 1980) (“The doctrine of

fair use, originally created and articulated in case law, permits courts to avoid rigid application of

the copyright statute when, on occasion, it would stifle the very creativity which that law is de-

signed to foster.”).

172. 4 MELVILLE B. NIMMER, NIMMER ON COPYRIGHT § 13F.03 (2024).

173. 141 S. Ct. 1183 (2021).

174. Id. at 1191 (explaining that API, as a tool, “allow[s] programmers to use . . . prewritten

code to build certain functions into their own programs, rather than write their own code to perform

those functions from scratch”) (citation omitted).

175. Id. at 1209 (“[I]n this case, where Google reimplemented a user interface, taking only

what was needed to allow users to put their accrued talents to work in a new and transformative

program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law.”).

176. Chilling Effect, DICTIONARY.COM, https://www.dictionary.com/browse/chilling-effect

[https://perma.cc/UEV7-HUSL] (last visited Apr. 15, 2024) (defining a chilling effect as “a discour-

aging or deterring effect, especially one resulting from a restrictive law or regulation”).

177. See Google LLC, 141 S. Ct. at 1209; see also Ephrat Livni, US Supreme Court Holds In-

novation in the Balance in Google v. Oracle, Q

UARTZ (Nov. 20, 2019, 12:09 PM),

https://qz.com/1751975/in-google-v-oracle-scotus-holds-innovation-in-the-balance

[https://perma.cc/6XWH-TEHH].

178. Google LLC, 141 S. Ct. at 1208.

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1. Limits to the Fair Use Doctrine Generally

Because the fair use doctrine functions as a balancing test, there is

no cut-and-dry formula to apply, and no guarantee a party will reach

their desired outcome.

179

As a result, courts analyze the application of

the doctrine on a case-by-case basis.

180

This often creates feelings of un-

ease for parties seeking legal remedies because they cannot truly predict

with sufficient certainty how a court will rule on the issue.

181

Addressing

recent uncertainties concerning the fair use doctrine, the Court recog-

nized that it has become increasingly “difficult to apply traditional copy-

right concepts in [this] technological world.”

182

It has taken a rather re-

signed position on this problem, admitting that many of the issues

cannot be addressed in a satisfactory matter until Congress chooses to

act.

183

This resignation occasionally works, like in Sony Corp. of Ameri-

ca v. Universal City Studios, Inc.

184

Following that case, Congress took

action, and the resulting legislation overruled its undesirable holding.

185

However, those who are already litigating in court cannot afford to sit

and wait for such legislation.

186

The fair use doctrine’s shortcomings are not limited to one field.

187

In the music industry, for example, juries must determine if there is a

transformative use or “substantial similarity” to already existing copy-

righted elements.

188

Jurors’ untrained ears may hear similarities between

musical works, even when forensic musicologists insist that no

179. U.S. Copyright Office Fair Use Index, supra note 38.

180. Id.

181. Stim, supra note 168.

182. Google LLC, 141 S. Ct. at 1208.

183. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 500 (1984) (Blackmun,

J., dissenting) (“Like so many other problems created by the interaction of copyright law with a new

technology, ‘[t]here can be no really satisfactory solution to the problem presented here, until Con-

gress acts.’”) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 167 (Burger, C.J.,

dissenting)).

184. 464 U.S. 417 (1984).

185. Realnetworks, Inc. v. DVD Copy Control Ass’n, 641 F. Supp. 2d 913, 941 (N.D. Cal.

2009) (citing Universal City Studio, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 323-24 (S.D.N.Y.

2000)) (explaining that the DMCA’s enactment resolved the copyright law deficiencies that the

Sony Court refused to address).

186. See Sony Corp. of Am., 464 U.S. at 500 (Blackmun, J., dissenting). While Congress later

remedied, through the DMCA, the copyright law deficiencies that the Court refused to address, this

was fourteen years after the Sony Court handed down its decision against the respondents. Womack,

supra note 123, at 763. For fourteen years, the respondents were left with the ramifications of the

unfavorable decision. Id.; Sony Corp. of Am., 464 U.S. at 500 (Blackmun, J., dissenting).

187. See Kristin Bateman, Note, “Distinctive Sounds”: A Critique of the Transformative Fair

Use Test in Practice and the Need for a New Music Fair Use Exception, 41 S

EATTLE U. L. REV.

1169, 1178-79 (2018) (highlighting current issues with fair use and the music industry).

188. Id. at 1181.

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infringement has occurred.

189

This has presented itself as an issue for

music-centered communities, which feel the transformative use approach

is notoriously unpredictable.

190

In the world of art, community members

find that courts have offered inconsistent outcomes, leaving the commu-

nity not only confused but also frustrated.

191

This has become a particu-

larly large problem because conflicting rulings tend to chill artistic ex-

pression.

192

Many had hoped that the Court would grant new guidance in

deciding the recent case of Andy Warhol Foundation for the Visual Arts,

Inc. v. Goldsmith.

193

Decided in May 2023, the case addressed artwork

produced by artist Andy Warhol, who based his creations on copyrighted

photos of the musician Prince.

194

The Court ruled against the Andy War-

hol Foundation and its fair use defense, as it intensely scrutinized the

commercial aspect of Warhol’s artwork.

195

The majority found that the

first factor weighed against the Andy Warhol Foundation primarily be-

cause Warhol licensed his work.

196

In her dissent, Justice Kagan stated

that this approach “leaves [the] first-factor inquiry in shambles.”

197

She

added that under the majority’s decision, all the creativity and transfor-

mation in the world cannot save a derivative piece from copyright in-

fringement if there is a commercial purpose involved.

198

This bright-line

rule is a stark contrast to the nuance that is typically employed during

these analyses.

199

Interestingly enough, however, the Court still stated

that a use of “commercial nature . . . is not dispositive.”

200

The Court’s

opinion has evoked mixed reactions, with experts stating that there is “a

189. Id. (“Armed only with the testimony of experts, it is unlikely that juries with no other mu-

sical training will be able to make a fair and reliable determination of whether outright copying has

actually occurred . . . .”).

190. Id. at 1179 (“[T]he transformative fair use test is too inexact in the hands of any given

fact-finder without the required music education to make reliably fair determinations that both max-

imize artistic freedom and protect the legitimate rights of music copyright owners.”).

191. Azmina Jasani & Emelyne Peticca, The Tension Between Copyright Law and Appropria-

tion Art: Where Is the Line Between Artistic Innovation and Stealing?, A

RT NEWSPAPER (Sept. 29,

2021), https://www.theartnewspaper.com/2021/09/29/the-tension-between-copyright-law-and-

appropriation-art-where-is-the-line-between-artistic-innovation-and-stealing

[https://perma.cc/8XK3-TCRK].

192. See id. Many artists are inspired by and even derive pieces of their work from others. Id.

Artists who do not know whether they will be held liable for such practices will hesitate to create

art; this will ultimately result in the chilling of artistic expression, and a lull in the production of art.

Id.

193. 598 U.S. 508 (2023).

194. Id. at 514-16.

195. Id. at 545-50.

196. Id. at 546-47.

197. Id. at 559 (Kagan, J., dissenting).

198. See id. at 559-60.

199. See id.

200. Id. at 531 (majority opinion).

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lot of room for conflicting interpretations,” thus failing to provide any

clearer guidance.

201

“[I]nexact and inconsistent,” the fair use doctrine

has a long way to go to appease the many who look forward to its re-

form.

202

2. Fair Use Doctrine in Light of Let’s Plays

The fair use doctrine does not provide a cut-and-dry formula to ap-

ply, especially when it comes to modern technology.

203

This becomes

more concerning when considering the internet-centric era we live in.

204

This issue is muddled even further when analyzed under the lens of cop-

yright and gameplay videos, as there is currently no case law on the mat-

ter.

205

Even lawyers who specialize in intellectual property law find the

intersection of fair use and video game footage to be a legal quagmire.

206

Many have come forward to offer advice to those seeking answers,

207

but the truth is that this advice will remain conjecture at best until there

is case law or further legislation to look to.

208

III.

CALL OF DUTY: MODERN MEDIA AND HOW CURRENT FAIR USE

PRACTICES FAIL TO MEET ITS NEEDS

This Part analyzes the legal issues at hand, namely how the fair use

doctrine fails to adapt to forms of media like Let’s Plays.

209

Because the

201. Christopher Parker, Supreme Court Rules That Andy Warhol Violated a Photographer’s

MITHSONIAN MAG. (May 24, 2023), https://www.smithsonianmag.com/smart-

news/andy-warhol-copyright-prince-fair-use-180982230 [https://perma.cc/K55P-B6YT]; see also

Peter Balonon-Rosen, When Is “Fair Use” Fair? In Warhol Copyright Case, Supreme Court Could

Offer New Answers,

MARKETPLACE (Oct. 7, 2022), https://www.marketplace.org/2022/10/07/when-

is-fair-use-fair-in-warhol-copyright-case-supreme-court-could-offer-new-answers

[https://perma.cc/95U7-9LMU].

202. Bateman, supra note 187, at 1176.

203. U.S. Copyright Office Fair Use Index, supra note 38.

204. See generally Davis, supra note 43 (analyzing the trajectory of widespread internet usage

in conjunction with judicial responses).

205. Chen, supra note 15, at 679 (“Currently, there is no case law on copyright and gameplay

videos, which only increases their uncertain legal status.”); Ore, supra note 15.

206. Ore, supra note 15.

207. See Ian Corzine, How to Follow the Doctrine of Fair Use in Copyright Law with Video

Games, I

AN CORZINE (Sept. 25, 2020), https://perma.cc/JLA4-59FG (showing an example of a blog

that explains how to conform one’s video game content to the fair use doctrine); see also Simon

Pulman & Mikaela Gross, Fair Use in Gaming Content—FAQS for Creators, CDAS (Jan. 24,

2020), https://cdas.com/fair-use-in-gaming-content-faqs-for-creators [https://perma.cc/NG3C-

WYBP] (showing another example of an informative blog post concerning fair use of gaming con-

tent).

208. See Chen, supra note 15, at 679 (“Currently, there is no case law on copyright and game-

play videos, which only increases their uncertain legal status.”); Ore, supra note 15.

209. See infra Part III.E.

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fair use doctrine has not yet been adapted to protect transformative

works like Let’s Plays, they are most likely a form of copyright in-

fringement.

210

We must find a tool for Let’s Players to use to protect

their works in light of the failures and shortcomings of the fair use

doctrine.

211

In this Part, each factor of the fair use doctrine is applied to Let’s

Play videos.

212

Subpart A concerns the purpose and character of the use

of copyrighted materials.

213

It analyzes how Let’s Plays use copyrighted

video games and for what purpose they use them.

214

Subpart B concerns

the nature of the copyrighted material and what purpose it serves.

215

Here, the nature of copyrighted video games will be called into ques-

tion.

216

Subpart C discusses the amount or substantiality of the portion

used

217

by considering how much a Let’s Play takes from a copyrighted

video game.

218

Subpart D analyzes the market effects of a Let’s Play.

219

Because these factors are weighed in a balancing test, Subpart E will

consider all four in tandem and contemplate whether Let’s Plays can be

considered fair use.

220

From there, Subpart E identifies the main issue at

hand: the fact that fair use does not protect Let’s Plays, and content crea-

tors are currently left without any legal protection.

221

A. Choose Your Character: Analyzing the Purpose and Character of

the Use

One of the first factors the Court considers is the purpose and char-

acter of the use.

222

When doing so, the Court will look at how a party as-

serting a fair use defense used the copyrighted work.

223

210. Video Game Story Time, supra note 50.

211. See Davis, supra note 43, at 149, 151-52, 161-63.

212. See infra Part III.A–D.

213. See infra Part III.A.

214. See infra Part III.A.

215. See infra Part III.B.

216. See infra Part III.B.

217. See infra Part III.C.

218. See infra Part III.C.

219. See infra Part III.D.

220. See infra Part III.E.

221. See infra Part III.E.

222. 17 U.S.C. § 107(1); NIMMER, supra note 181, at § 13F.05.

223. See § 107 note (General Background of the Problem).

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1. To Be or Not to Be Enumerated

The statute itself enumerates several uses that are amenable to fair

use.

224

These uses include, but are not limited to: “criticism, comment,

news reporting, teaching (including multiple copies for classroom use),

scholarship, or research . . . .”

225

It is important to note that these are not

the only uses that will merit a fair use defense.

226

The Court has empha-

sized that unenumerated uses must be considered alongside enumerated

ones, claiming it would be an error to fail to apply the fair use doctrine

simply because a type of use is unenumerated.

227

The statute also re-

quires considering whether the purpose of the use was commercial in na-

ture, or instead for a nonprofit, educational purpose.

228

The Court recog-

nizes that nonprofit and educational uses are more likely to be instances

of fair use than commercial uses.

229

While the dichotomy between the

two is significant in a fair use application, one cannot prevail against a

pose.

230

On the other hand, one whose use is commercial in nature can

still prevail.

231

This consideration is not dispositive.

232

Courts must still

consider the purpose in tandem with the other following factors.

233

224. Id. § 107(1); NIMMER, supra note 181, at § 13F.05[A]. But see Kenneth D. Crews, Fair

Use, C

OLUM. UNIV. LIBRS., https://copyright.columbia.edu/basics/fair-use.html

[https://perma.cc/R89H-FV6P] (last visited Apr. 15, 2024) (“A finding of fair use depends on appli-

cation of all four factors, not merely the purpose. However, limiting your purpose to some of these

[enumerated] activities will be an important part of claiming fair use.”).

225. § 107; U.S. Copyright Office Fair Use Index, supra note 38 (“Section 107 of the Copy-

right Act provides the statutory framework for determining whether something is a fair use and

identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship,

and research—as examples of activities that may qualify as fair use.”).

226. NIMMER, supra note 181, at § 13F.05[A][1].

227. Id. NIMMER ON COPYRIGHT explains the importance of enumerated uses:

It is important to stress that these purposes should be considered [by courts] among oth-

ers that are not specifically enumerated; it has been held to be an error for the trial court

to refrain from considering the four fair use factors on the ground that the use did not fall

within the preambular enumeration.

Id. (footnotes omitted).

228. § 107(1) (enumerating “the purpose and character of the use, including whether such use

is of a commercial nature or is for nonprofit educational purposes” as a factor to be considered when

determining fair use).

229. U.S. Copyright Office Fair Use Index, supra note 38.

230. Id. (“This does not mean, however, that all nonprofit education and noncommercial uses

are fair and all commercial uses are not fair . . . .”); Crews, supra note 224 (“[B]e careful: Not all

nonprofit educational uses are ‘fair.’”).

231. Crews, supra note 224 (“[D]o not jump to a conclusion based simply on whether your use

is educational or commercial.”).

232. NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004). The Second Circuit here

explains:

The Supreme Court in Campbell rejected the notion that the commercial nature of the

use could by itself be a dispositive consideration. The Campbell opinion observes that

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2. Inspiration or Imitation

The Supreme Court has emphasized that this factor is incredibly

important for determining fair use because it fosters a helpful analysis of

whether the copyrighted material was used to create something new and

“transformative” or merely copied another work.

234

Courts tend to favor

uses that are transformative in nature, as opposed to pure reproduc-

tions.

235

This means that a fair use defense is more likely to succeed

when the copyrighted work has been “‘transformed’ into something new

or of new utility or meaning,” and can thus be described as having a dif-

ferent purpose or character.

236

Measuring how transformative a new

work is will ultimately affect how heavily other fair use factors are

weighed.

237

In instances of great transformation, other factors will be

less significant.

238

For example, in Blanch v. Koons,

239

the Court found

that the new work in question was “substantially transformative” enough

to disqualify its commercial nature.

240

3. Applying the First Factor to Let’s Plays

Using video game footage for online postings is not a use enumer-

ated in the statute.

241

However, even though it is not an enumerated use,

courts can still apply the fair use doctrine.

242

In their analyses, courts

will decide the purpose and character of the use, as well as whether the

“nearly all of the illustrative uses listed in the preamble paragraph of § 107, including

news reporting, comment, criticism, teaching, scholarship, and research . . . ‘are general-

ly conducted for profit’ . . . .”

Id. (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994)) (citation omitted).

233. U.S. Copyright Office Fair Use Index, supra note 38 (“[C]ourts will balance the purpose

and character of the use against the other factors . . . .”); Crews, supra note 224 (“You still need to

evaluate, apply, and weigh in the balance the nature of the copyrighted work, the amount or substan-

tiality of the portion used, and the potential impact of the use on the market or value of the work.”).

234. Stim, supra note 168.

235. Crews, supra note 224; U.S. Copyright Office Fair Use Index, supra note 38.

236. Crews, supra note 224; U.S. Copyright Office Fair Use Index, supra note 38.

237. See Campbell, 510 U.S. at 569.

238. Id. (“[T]he more transformative the new work, the less will be the significance of other

factors, like commercialism, that may weigh against a finding of fair use.”).

239. 467 F.3d 244 (2d Cir. 2006).

240. Id. at 254. In this case, an artist was commissioned to create several pieces of work. Id. at

247. To do so, he scanned several copyrighted advertisements and digitally superimposed them to-

gether. Id. Upon these compilations, he based several photos that he then had his assistants use as

templates for billboard-size paintings. Id. The court ultimately found that the artist’s goals were

“sharply different” than the copyright holder’s goals, thus “confirm[ing] the transformative nature

of the use.” Id. at 252.

241. 17 U.S.C. § 107.

242. See NIMMER, supra note 181, at § 13F.05[A][1].

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use was commercial or noncommercial in nature.

243

Courts do not look

favorably upon a purpose or character of use that aims to merely substi-

tute what the original copyrighted material offered.

244

A use that only

intends to “supplant[] or substitute[] for” the original copyrighted mate-

rials is unlikely to be protected by fair use.

245

Typically, the main purpose of a Let’s Play video is to entertain.

246

This infringes upon the purpose of video games, which also aim to enter-

tain.

247

However, it should be noted that while entertainment remains the

main intention, the purpose of a Let’s Play is to be watched,

248

as op-

posed to a video game, which is to be played.

249

Therefore, it is not en-

tirely clear whether Let’s Plays usurp the place of playing a video game

when many still choose the latter.

250

Considered in tandem, courts will look to whether or not a Let’s

Play video is commercial in nature.

251

“Noncommercial use[s are] more

likely to be deemed fair use than commercial use[s].”

252

That being said,

commercial uses are not intrinsically barred from being fair use.

253

Ulti-

mately, this factor will primarily depend on whether a content creator

monetizes their videos.

254

Monetization methods include accepting ad-

vertising revenue or being sponsored.

255

Generally, content creators on YouTube will choose to monetize

their work because doing so provides some financial security and thus

243. § 107(1).

244. See Copyright and Fair Use, HARV. UNIV. OFF. GEN. COUNS.,

https://ogc.harvard.edu/pages/copyright-and-fair-use [https://perma.cc/S7WT-CAVP] (last visited

Apr. 15, 2024).

245. Id.

246. See James Duffy, What Is a “Let’s Play,” and Why Are They So Popular?, SMART

WALLET, https://thesmartwallet.com/what-is-lets-play [https://perma.cc/2UNU-NMKM] (Feb. 10,

2022) (“The point of a let’s play is not to demonstrate skill, but rather to simply have fun playing.

Often the commentary is as important as the game footage itself. Let’s play creators usually attempt

to be funny or insightful to help draw people to their videos.”).

247. § 107(1); Phil Owen, What Is a Video Game? A Short Explainer, WRAP (Mar. 9, 2016,

9:42 AM), https://www.thewrap.com/what-is-a-video-game-a-short-explainer

[https://perma.cc/2ST9-CBHS] (defining a video game as an “interactive digital entertainment that

you ‘play’ via a computer, a game console (like the Xbox or PlayStation) or a phone or tablet”).

248. Duffy, supra note 246.

249. Owen, supra note 247.

250. Chen, supra note 15, at 699 (“[I]t seems that the gameplay videos—which do not permit

the viewer to actually play the game itself—did not actually serve as a substitute for purchasing the

game.”).

251. Copyright and Fair Use, supra note 244.

252. Id.

253. Fair Use, DIGIT. MEDIA L. PROJECT, https://www.dmlp.org/legal-guide/fair-use

[https://perma.cc/MMA4-ZKXN] (Sept. 10, 2023).

254. Copyright and Fair Use, supra note 244; Martin, supra note 128.

255. Lee, supra note 47.

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makes it easier to keep creating content.

256

Furthermore, if a content cre-

ator can generate enough revenue, they are able to make a living from

creating videos alone.

257

Many creators hope to achieve that very goal.

258

Because this is true, this Note will focus primarily on monetized videos

with some commercial nature behind them.

259

It is not impermissible for a content creator to profit from fair

use.

260

In fact, there are some widely known instances where individuals

have made incredible profits through fair use.

261

Take, for example, the

famous parody artist “Weird Al” Yankovic, who has sold more than

twelve million records.

262

That being said, commercial uses are still gen-

erally disfavored.

263

Taking both aspects of this factor into consideration,

it is clear that Let’s Plays are commercial works that intrude on part of a

video game’s potential market.

264

While this factor is incredibly im-

portant, it is only one singular part of the analysis.

265

B. The Source’s Spawn Point: Analyzing the Nature of the Original

Material

This factor concerns the original material—the video game itself.

266

“This factor centers on the work being used, and [how] the law allows

256. See Drew Gooden, I Quit My Job to Do YouTube, YOUTUBE (Dec. 29, 2017),

https://www.youtube.com/watch?v=Zt2tusj0IGU&ab_channel=DrewGooden

[https://perma.cc/7QYX-KM2L]. This is an example of a content creator who was able to make

enough income through YouTube that he was able to quit his job to focus on creating videos. Id. In

the description of the video, he states that he is now able to use all of his free time to create videos.

Id.

257. See, e.g., Chris Stokel-Walker, Meet the Workers Who Quit Their Jobs to Become

Full-Time YouTubers, F

AST CO. (Dec. 21, 2022), https://www.fastcompany.com/90828284/meet-

the-workers-who-quit-their-jobs-to-become-full-time-youtubers [https://perma.cc/SB6L-DNP5].

258. See, e.g., Gooden, supra note 256.

259. See infra Part IV.

260. See infra Part IV; Fair Use, supra note 253. The Digital Media Law Project expounds on

the issue of profit:

Courts originally presumed that if your use was commercial it was an unfair exploitation.

They later abandoned that assumption because many of the possible fair uses of a work

listed in section 107’s preamble, such as uses for purposes of news reporting, are con-

ducted for profit. Although courts still consider the commercial nature of the use as part

of their analysis, they will not brand a transformative use unfair simply because it makes

a profit.

Fair Use, supra note 253.

261. See Steve Vondran, How Can You Get Rich Off Copyright Licensing?, VONDRAN LEGAL

(May 21, 2022), https://www.vondranlegal.com/how-can-you-get-rich-off-copyright-licensing

[https://perma.cc/25YV-TMQE].

262. Id.

263. Copyright and Fair Use, supra note 244.

264. Id.

265. Id.

266. 17 U.S.C. § 107.

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for a wider or narrower scope of fair use, depending on the characteris-

tics or attributes of the work.”

267

Great consideration is given to whether

a work is original, creative, and imaginative in nature.

268

Courts tend to

be more protective of inventive art such as movies, poetry, and music—

more so than they would be of nonfiction or informational works, like a

phonebook.

269

In contrast, courts have applied fair use more broadly to

nonfiction than fiction.

270

Generally speaking, this is because courts be-

lieve that certain factual information is in the public interest.

271

There-

fore, nonfiction work and factual information garner less protection un-

der the fair use doctrine.

272

Each video game is usually a product that was copyrighted for its

creative material and ultimately sells an experience.

273

As a whole, it is

an “original expression” and “has more in common with fiction than

with works based on facts, such as, for example, biographies or tele-

phone directories.”

274

As works that are closer to fiction, video games

are primarily based on and created from the innovation and imagination

of their development teams.

275

Therefore, the nature of video games

greatly limits the application of fair use.

276

While it would be possible

for a content creator to prevail, it is unlikely the Court would find this

factor in a content creator’s favor.

277

267. Crews, supra note 224.

268. Rogers v. Koons, 960 F.2d 301, 310 (2d Cir. 1992).

269. See id.; see also Crews, supra note 224.

270. See Crews, supra note 224.

271. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1532-33 (S.D.N.Y.

1991) (“Factual works, such as biographies, reviews, criticism and commentary, are believed to

have a greater public value and, therefore, uses of them may be better tolerated by the copyright

law. Works containing information in the public interest may require less protection.”) (citations

omitted).

272. New Era Publ’ns Int’l, ApS v. Carol Publ. Grp., 904 F.2d 152, 157 (2d Cir. 1990) (“[T]he

scope of fair use is greater with respect to factual than non-factual works.” (citing Harper & Row,

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563 (1985))).

273. 17 U.S.C. § 107; see, e.g., About Tetris, TETRIS, https://tetris.com/about-us

[https://perma.cc/NP43-KRBM] (last visited Apr. 15, 2024).

274. Rogers, 960 F.2d at 310.

275. What Is the Role of Creativity in Game Development?, LINKEDIN,

https://www.linkedin.com/advice/1/what-role-creativity-game-development-skills-game-

development-kc37c [https://perma.cc/ZTJ7-XTS5] (last visited Apr. 15, 2024); see also Marshall

Katheder, What the Gaming Industry Can Teach Us About Creativity, O

GILVY (Sept. 16, 2019),

https://www.ogilvy.com/uk/ideas/what-gaming-industry-can-teach-us-about-creativity

[https://perma.cc/P3LG-U4TF].

276. See Rogers, 960 F.2d at 310.

277. See id.

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C. Copy and Paste: Analyzing the Amount Copied

The third factor concerns “the amount and substantiality of the por-

tion used.”

278

When considering this, the Court examines “both the

quantity and quality of the copyrighted material that was used.”

279

The

“quality” of the material used refers to its importance and whether it

“constitute[s] the heart of the work.”

280

The “amount” refers to the

amount of copied material relative to the entirety of the original.

281

many aspects of the fair use doctrine, there is no bright-line rule that sets

out exact quantity limits.

282

However, there is the general guiding prin-

ciple that the more one uses relative to the entirety of the work, the more

likely this factor will weigh against them.

283

This is mere guidance at

best and does not apply in every context.

284

For example, copying an en-

tire work can be acceptable in some instances, such as critique, com-

ment, or parody.

285

In many instances, a Let’s Play will cover the entirety of a game,

from start to finish.

286

There are two primary reasons for this: first, a

goal of Let’s Plays is to mimic playing alongside a friend as if one were

there playing with them.

287

To realistically replicate that feeling, viewers

want to be able to see everything the player does within the game.

288

Second, viewers develop a sense of investment in the plots and game-

play they watch.

289

While these are valid reasons for the content creator

and audience, it is more likely that the general guiding principle will ap-

ply here.

290

Let’s Plays are not really critique, comment, or parody—

they are simply entertainment at their core.

291

If a content creator were to

use the entirety of a video game for their Let’s Play, this factor would

likely be weighed against them.

292

278. § 107.

279. Benjamin Reiser, Note, Anything You Can Use, I Can Use Better: Examining the Con-

tours of Fair Use as an Affirmative Defense for Theatre Artists, Creators, and Producers, 30

FORDHAM INTELL. PROP., MEDIA & ENT. L.J. 873, 930 (2020).

280. See id. (internal quotations omitted).

281. Crews, supra note 224.

282. Id.

283. Copyright and Fair Use, supra note 244.

284. See Crews, supra note 224.

285. Id.

286. See, e.g., Markiplier, supra note 48.

287. See Hagen, supra note 100, at 252.

288. See id.

289. See Postel, supra note 49, at 1173-74.

290. See Copyright and Fair Use, supra note 244; see also Postel, supra note 46, at 1173-74.

291. Duffy, supra note 246.

292. See Copyright and Fair Use, supra note 244.

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D. Mass Effect: Analyzing the Cumulative Impact on the Market

The fourth factor in the fair use analysis concerns “the effect of the

use [on] the potential market.”

293

If the use adversely affects the market

for the copyrighted work, then it is less likely to be considered fair

use.

294

Courts often consider this to be one of the two most important

factors in the analysis.

295

When considering this factor, courts focus

heavily on how the market value of the original work is or will be affect-

ed.

296

The concern here is primarily economic harm.

297

This factor will

usually weigh against a user if, in the aggregate, uses like “the one in

question would have a ‘substantially adverse impact’ on the potential

market for the work.”

298

In reality, this factor is deeply tied with the first

factor, which considers whether the use “supplants or substitutes for the

copyrighted work.”

299

For example, if a use supplants the original work,

then the market for that original is adversely affected.

300

When “the in-

fringer’s target audience and the nature of the infringing content [are]

the same as the original,” and the copyrighted work suffers economic

harm as a result, an impermissible market supplantation has occurred.

301

Because there are diverse genres of video games, market effects

will vary greatly across game types.

302

Therefore, it is incredibly arduous

to make generalized statements about whether the market effects of a

Let’s Play will be categorically adverse or not.

303

Instead, this needs to

be approached on a case-by-case basis.

304

For example, some video

games offer “linear” experiences.

305

This includes a single route to a

predetermined outcome, and thus all playthroughs and events are

293. 17 U.S.C. § 107; see also Reiser, supra note 279, at 885 (“For years after the 1976 codifi-

cation of 17 U.S.C. § 107, courts widely regarded the fourth statutory factor—the effect of a use on

the market—to be undoubtedly the single most important element of fair use.”) (internal quotations

omitted).

294. Copyright and Fair Use, supra note 244.

295. Id.

296. Id.

297. Id.

298. Id.

299. Copyright and Fair Use, supra note 244.

300. Id.

301. Cariou v. Prince, 714 F.3d 694, 709 (2d Cir. 2013); see also Copyright and Fair Use, su-

pra note 244.

302. Stim, supra note 168; 17 U.S.C. § 107.

303. Stim, supra note 168.

304. U.S. Copyright Office Fair Use Index, supra note 38.

305. Soham De, What’s the Difference Between Linear and Nonlinear Video Games?, MAKE

USE OF (Dec. 13, 2021), https://www.makeuseof.com/linear-non-linear-video-game-differences

[https://perma.cc/CR3K-JG2Z] (“A linear game is one that focuses on guiding the player through a

set path, with largely similar gameplay.”).

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essentially the same.

306

One notable example of a linear game experience

is Super Mario Bros.

307

On the other hand, there are video games with

endless replayability,

308

where no playthrough is the same.

309

Each

non-linear gameplay experience is unique.

310

Some well-known exam-

ples of non-linear games are Tetris,

311

Fortnite,

312

and Minecraft.

313

reality, games will fall on a spectrum between these experience types.

314

Games with greater replayability will ultimately be affected less

negatively by the use.

315

Watching another individual play will not de-

tract from the desire to play the game on one’s own.

316

The opposite is

true of linear games.

317

Once an individual watches the game from start

to finish, there is nothing particularly new to experience by playing the

game on their own.

318

Therefore, there is a real possibility that viewers

of a Let’s Play featuring a linear game will be less likely to purchase that

game.

319

This would ultimately supplant that game, thus adversely af-

fecting its potential market.

320

However, there is also the strong and

306. Id.

307. Joshua Vu, The Success of the Narrative of Super Mario Bros., NARRATIVES IN VIDEO

GAMES & FILM, https://perma.cc/D5FC-975A (last visited Apr. 15, 2024).

308. John Spacey, What Is Replay Value?, SIMPLICABLE, https://simplicable.com/IT/replay-

value [https://perma.cc/UUP2-73K4] (July 26, 2023) (defining replay value as “the number of times

a game can be played before it becomes tiresome”). To state it more technically, it is the appeal and

capability of a game to be played again after its first completion. See id. The question of replayabil-

ity usually rests on how entertaining the game continues to be after that initial completion, and

whether the game draws players back to continue engaging with it. See id. It also includes whether

or not a game can truly be “completed” at all. See id.

309. See De, supra note 305; see also Spacey, supra note 308.

310. See De, supra note 305; see also Spacey, supra note 308.

311. See, e.g., About Tetris, supra note 273.

312. Fortnite, EPIC GAMES, https://store.epicgames.com/en-US/p/fortnite

[https://perma.cc/P7MH-VFRV] (last visited Apr. 15, 2024).

313. Anastasia Maillot & Gabrielle Huston, Minecraft Complete Guide and Walkthrough,

HEGAMER, https://www.thegamer.com/minecraft-complete-guide-walkthrough

[https://perma.cc/5R8P-PFT2] (July 16, 2023).

314. De, supra note 305; see Vu, supra note 307 (providing an example of the linear end of the

spectrum); About Tetris, supra note 273 (providing an example of a game that resides at the oppo-

site end of the spectrum).

315. See Chen, supra note 15, at 700-01 (“[G]ames that are ‘more expansive’ or have better

replayability, such as sandbox games, might benefit economically from the Let’s Play communi-

ty.”).

316. Id. at 698, 700-01.

317. See Patrick Klepek, Not Every Developer Is Convinced Let’s Play Videos Are a Good

Thing, K

OTAKU (Mar. 25, 2016), https://kotaku.com/not-every-developer-is-convinced-let-s-play-

videos-are-1766985440 [https://perma.cc/P9QD-5X64].

318. Puddington, supra note 146, at 430 (“A lengthy ‘Let’s Play’ series spanning multiple

playthroughs or covering several available endings to a particular game may take such a substantial

portion of the work as to negatively impact ‘the potential market for or value of the copyrighted

work,’ leaving potential purchasers with little remaining game content to explore on their own.”).

319. See, e.g., Carey, supra note 142.

320. Copyright and Fair Use, supra note 244; 17 U.S.C. § 107.

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popular argument that a Let’s Play can work to advertise and promote a

game.

321

Game developers openly admit that being featured by content

creators is currently the cheapest and easiest way to market a game.

322

For example, small developers reaching the audience of a large Let’s

Play channel would gain a monumental boon.

323

Ultimately, it is impos-

sible to make a general determination on which party this factor would

weigh in favor of without considering case-specific facts.

324

E. The Bug in the System

Many Let’s Play content creators believe that their work is covered

under fair use, but this is probably not true.

325

Courts currently refuse to

address whether or not Let’s Plays constitute copyright infringement, but

it is a question that will come knocking sooner or later.

326

When the time

comes, content creators will not have the legal means to protect their

work.

327

The fair use doctrine has failed to adapt to the era of the inter-

net, and thus cannot be relied upon.

328

Until adaptations occur, content

creators and developers alike need and deserve other means to safeguard

the products of their labor.

329

IV.

REWRITING THE CODE: IMPLEMENTING A BLANKET LICENSING

SYSTEM TO ADDRESS CURRENT COPYRIGHT PITFALLS

Subpart A discusses the context of this Note’s proposed solution.

330

Subpart B addresses the solution itself—incorporating a blanket licens-

ing system into platforms like YouTube.

331

Subpart C discusses potential

counterarguments to this Note’s solution.

332

A. Who Is the Final Boss?

This Note neither argues that Let’s Players should have free reign

to use whatever copyrighted material they see fit for their channel

321. Brusa, supra note 35, at 260.

322. See Pearce, supra note 161.

323. See Shaver, supra note 158.

324. § 107; U.S. Copyright Office Fair Use Index, supra note 38.

325. See Zoia, supra note 17; see also supra Part III.A–C.

326. Epic Games, Inc. v. Mendes, No. 3:17-cv-06223-LB, 2018 U.S. Dist. LEXIS 98719, at

*22 (N.D. Cal. June 12, 2018).

327. See Zoia, supra note 17; see also supra Part III.A–C.

328. See Davis, supra note 43, at 149, 151-52, 161-63.

329. Narayanan, supra note 3.

330. See infra Part IV.A.

331. See infra Part IV.B.

332. See infra Part IV.C.

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without repercussion, nor that fair use would include Let’s Plays.

333

Vid-

eo game developers invest incredible amounts of resources into their

projects, whether it be time, labor, or money.

334

As such, their work mer-

its protection.

335

This Note acknowledges that while Let’s Play videos do

use copyrighted material, they usually embody the labor and effort of

their creator as well.

336

In a developing world where large digital plat-

forms immediately side with copyright holders, content creators deserve

additional tools to help them protect their own work.

337

To find this tool,

we must stop pitting game developers against content creators.

338

In-

stead, we should shift our attention to the party that always wins the

game: the content platforms.

339

Protected by safe harbor rules, and reap-

ing the benefits of Let’s Play monetization, platforms like YouTube

have long enjoyed the middle ground between these two feuding fac-

tions.

340

To create a truly beneficial and symbiotic relationship between

Let’s Players and game developers—that offers protection to both—

YouTube must be pushed to broker that peace.

341

B. The Blanket License

This Note proposes the adoption of a blanket licensing system for

platforms like YouTube, which deal significantly with video game con-

tent.

342

Instead of signing content creators on an individual basis, game

developers can grant platforms like YouTube general access to their

333. See infra Part IV.B.

334. How Much Does It Cost to Make a Game?, AUROCH DIGIT. (Aug. 24, 2021),

https://www.aurochdigital.com/blog/2021/8/19/how-much-does-it-cost-to-make-a-game

[https://perma.cc/7CFC-H7L5] (“The lower $50k amount is the total cost for a solo developer, on

average, to work for a year on a game . . . . When it comes to AAA game development you are gen-

erally talking in the tens of millions of dollars. Most AAA games are made by teams of a few hun-

dred people working for two or more years.”).

335. See Klepek, supra note 317 (“We did not intend to make copyright claims or to force any-

one to take down their videos . . . . [W]e simply intended for Jon [who composed the score of That

Dragon, Cancer] to be able to draw some income from the original soundtrack to our game that he

poured his heart into.”). Without certain protections, the individuals behind video games cannot

reap the benefits of their hard work. Id.

336. Narayanan, supra note 3.

337. See Alexander, supra note 6.

338. See Pearce, supra note 161; see also Klepek, supra note 317.

339. Viacom Int’l, Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 123 (S.D.N.Y. 2013); see Mar-

fo, supra note 118, at 469.

340. Viacom Int’l, Inc., 940 F. Supp. 2d at 123 (holding that YouTube is protected by DMCA

safe harbors); see Marfo, supra note 118, at 469 (“YouTube profited from hosting the popular con-

tent on their domain . . . .”).

341. See infra Part IV.B.

342. Brouwer, supra note 119 (estimating that about fifteen percent of all videos on YouTube

concern video games or contain video game content).

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intellectual property for a fee.

343

Blanket licensing would simply be the

most efficient way to grant content creators access to as many game ti-

tles as possible.

344

The licensing fee would come straight from the reve-

nue derived from the monetized video.

345

However, the cost of the fee

would be shared between both YouTube and the content creator.

346

The

financial burden for the blanket license should not be placed entirely on

individual creators while YouTube continues to make unencumbered

profits.

347

The fee itself would be tied to a progressive rate system: vide-

os that attract more viewership and thus generate more revenue will fall

into a higher fee bracket.

348

Alternatively, videos with low viewership

will fall into a lower fee bracket.

349

Incorporating a progressive fee sys-

tem allows for smaller channels to enjoy the benefits of the blanket li-

cense without being required to pay the same fee as a YouTuber who,

for example, earns millions of dollars from their videos each year.

350

This blanket licensing system allows all three parties to simultane-

ously benefit.

351

First, content creators can continue to monetize their

videos while also receiving legal protection they are not currently of-

fered by fair use.

352

Furthermore, under the blanket license, game devel-

opers would be barred from attempting to claim all advertising revenue

from content that features their games, essentially preventing the de-

monetization of the Let’s Player.

353

This system, of course, also benefits

343. See Common Licensing Terms Defined, ASCAP, https://www.ascap.com/help/ascap-

licensing/licensing-terms-defined [https://perma.cc/DU62-EC2U] (last visited Apr. 15, 2024). A

blanket license would provide access to a developer’s library of work during the term of a license

for a single fee, like how some parts of the music industry already operate. Id.

344. See Liam Duncan, What Is a Blanket License, and How Does It Work with ASCAP, BMI,

SESAC, and PRS?, M

USIC INDUS. HOW TO, https://www.musicindustryhowto.com/what-is-a-

blanket-license-and-how-does-it-work-with-ascap-bmi-sesac-and-prs [https://perma.cc/YXF9-

DANL] (Dec. 29, 2020). Blanket licenses are already an incredibly efficient method of issuing li-

censes to businesses that have many copyrighted works. Id.

345. Martin, supra note 128.

346. Id. The cost would be taken from the advertising revenue but split equally between

YouTube and the content creator. Id.

347. See Marfo, supra note 118, at 469 (“YouTube profited from hosting the popular content

on their domain.”).

348. See Progressive Fee Structure, ORG. BIOLOGICAL FIELD STATION, https://perma.cc/XP74-

X5AY (last visited Apr. 15, 2024) (showing an example of a progressive fee structure).

349. See id.

350. See id. (“The progressive dues structure allows smaller or less-resourced field stations to

join at a lower-than-current rate without compromising OBFS operational revenue.”); Zoia, supra

note 17.

351. See Greg Lastowka, All Your Nintendo Let’s Plays Are Belong to Nintendo? [sic], GAME

DEV. (May 17, 2013), https://www.gamedeveloper.com/business/all-your-nintendo-let-s-plays-are-

belong-to-nintendo- [https://perma.cc/B222-9AWE]; see also Gerrard, supra note 118 (showing

how Let’s Players currently benefit); see also Klepek, supra note 317.

352. Gerrard, supra note 118; see supra Part III.E.

353. See Kent, supra note 151.

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game developers, who currently feel scorned by the Let’s Play commu-

nity.

354

They would derive just compensation for videos that feature their

copyrighted content and would continue to also receive “eas[y] [and]

cheap[]” advertising.

355

Finally, YouTube can continue to reap the bene-

fits that it already has, the caveat being that some of its profits would go

to the licensing fee.

356

However, there is also another added benefit for

YouTube.

357

If YouTube were able to negotiate a blanket license with

several developers, and essentially offer content creators a more secure

way to use copyrighted material, this would give them an advantage over

their competitors.

358

Content creators would most likely be attracted to

the opportunity to safely use copyrighted material, and would thus post

their videos on YouTube as opposed to rival content platforms like

Twitch.

359

The current system allows YouTube to exploit the conflict between

game developers and Let’s Players.

360

Game developers feel as though

they cannot protect their work, fearing that any copyright infringement

claims against content creators will garner intense backlash.

361

Content

creators feel as though they cannot protect their work, as YouTube’s

Content ID system actively works against them and discourages ap-

peals.

362

In the middle of it all, YouTube is profiting.

363

By pushing plat-

forms like YouTube into adopting blanket licenses, both parties can

safeguard the products of their labor.

364

This, however, is more of a re-

medial solution to the larger issue at hand: fair use needs to adapt for

digital purposes.

365

C. Counter-Strike: Addressing Potential Counterarguments

One counterargument is that the fair use doctrine was created with

flexibility in mind, and so it is already suited to adapt to new media

354. See Carey, supra note 142; see also Klepek, supra note 317.

355. Pearce, supra note 161; see also Carey, supra note 142; Klepek, supra note 317.

356. See Marfo, supra note 118, at 469.

357. See Tim Peterson, Twitch, Facebook, YouTube and Mixer Fight Talent Wars for Top

Gamers, D

IGIDAY (Dec. 11, 2019), https://digiday.com/future-of-tv/twitch-facebook-youtube-

mixer-fight-talent-wars-top-gamers [https://perma.cc/GB99-D6WR]. The blanket license system

will give YouTube an edge in the talent war for gamers. See id.

358. See id. (showing a need for content platforms to offer benefits to content creators).

359. See id.

360. Lastowka, supra note 351.

361. See Chalk, supra note 22; see also Kent, supra note 151 (stating that Nintendo faced in-

tense backlash and criticism for trying to assert its rights over its intellectual property).

362. Trendacosta, supra note 5.

363. Marfo, supra note 118, at 469.

364. See Gerrard, supra note 118; see also Carey, supra note 142; Klepek, supra note 317.

365. See Davis, supra note 43, at 132.

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forms.

366

However, this has already been disproven.

367

As it stands, no

legal test exists for determining whether something is a “copy” for copy-

right infringement and fair use purposes.

368

To analyze why this presents

an issue in an internet-centric era, consider how data is transmitted over

the internet.

369

During the transfer, a computer will make a temporary

copy of each piece of data; this has opened the door to the argument that

every work transmitted via the internet is copied and infringed through-

out the entire process.

370

However, common sense assures us this is not

the case, and Congress agrees.

371

Recognizing the need for some change,

Congress passed legislation as part of the DMCA, granting copyright in-

fringement exemptions to service providers that ultimately transmitted

the copyrighted data.

372

This shows that even Congress has recognized

that current copyright and fair use laws need an overhaul to meet today’s

needs, and it is time to continue taking those steps.

373

Another counterargument is that game developers will refuse to en-

gage in blanket licensing, as they already dislike the general concept of

Let’s Plays.

374

This Note’s response is that game developers will likely

welcome any new and amenable alternative to their current situation.

375

From their perspective, they are now choosing between two evils: either

endure the Let’s Play community and suffer the purported financial loss-

es, or file copyright claims and suffer immense community backlash.

376

If a third option were to become available—one in which they can derive

revenue and assert their copyrights—it would seem very desirable to

game developers.

377

Furthermore, many game developers dislike Let’s

Plays because of the current system.

378

If a blanket licensing agreement

366. Crews, supra note 224.

367. Davis, supra note 43, at 133-34.

368. 17 U.S.C. § 101 (offering no legal test); id. § 102 note (Fixation in Tangible Form) (“The

definition[] of [copy] in section 101, together with [its] usage in section 102 and throughout the bill,

reflect a fundamental distinction between the ‘original work’ which is the product of ‘authorship’

and the multitude of material objects in which it can be embodied.”).

369. Davis, supra note 43, at 133-34.

370. See id.

371. See id.

372. See id. at 165.

373. See id. at 132.

374. Nicholas Ribaudo, YouTube, Video Games, and Fair Use: Nintendo’s Copyright In-

fringement Battle with YouTube’s “Let’s Plays” and Its Potential Chilling Effects, 6 B

ERKELEY J.

ENT. & SPORTS L. 114, 134 (2017).

375. See Chalk, supra note 22; see also Kent, supra note 151 (showing that developers current-

ly suffer backlash and criticism when asserting their intellectual property rights).

376. See Chalk, supra note 22; see also Kent, supra note 151.

377. See supra Part IV.B; see also Pearce, supra note 161; Chalk, supra note 22; Kent, supra

note 151.

378. See Pearce, supra note 161; see also Kent, supra note 151.

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were implemented, this would alleviate many of the frustrations that de-

velopers hold against content creators.

379

CONCLUSION

Ultimately, the fair use doctrine is not currently equipped to handle

new forms of media like Let’s Plays.

380

To ensure that content creators

and game developers are still afforded some legal certainty and protec-

tion, measures outside of the fair use doctrine must be taken.

381

An effi-

cient method, for the time being, is a blanket license, which can protect

and benefit all parties involved.

382

Gina Aliberti*

379. See supra Part IV.B.

380. See supra Part III.

381. See supra Part III.E.

382. See supra Part IV.

* J.D. Candidate, 2024, Maurice A. Deane School of Law at Hofstra University; B.A., cum

laude, Philosophy, Politics and Law and Classical Near Eastern Studies, 2020, Binghamton Univer-

sity. I would like to thank everyone in my life who helped bring this Note to life, especially my

partner, Conor Winne. Without your wit and words of encouragement, I’m not sure I would have

made it this far . . . if at all! Truly, this Note has been a labor of love, but I did not do it alone. I

would also like to thank those on the Hofstra Law Review for their work and support, including the

Managing Board, as well as Dennis Lind, Robert Saylor, Patricia Bober, and Jason Egielski. To my

parents and brothers, who have never doubted a single step I’ve taken along the way, I hope this

reaffirms your unwavering faith in me.

Aliberti: The Quest to Quell the Let's Play Controversy: A Strategy Guide o

Published by Scholarship @ Hofstra Law, 2024