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UNITED STATES OF AMERICA
BFORE THE FEDERAL TRADE COMMISSION
COMMISSIONERS: Edith Ramirez, Chairwoman
Julie Brill
Maureen K. Ohlhausen
Joshua D. Wright
Terrell McSweeny
In the Matter of
MACHINIMA, INC.,
a corporation
Docket No. ______
COMPLAINT
The Federal Trade Commission, having reason to believe that Machinima, Inc., a
corporation (“Respondent”), has violated provisions of the Federal Trade Commission Act, and it
appearing to the Commission that this proceeding is in the public interest, alleges:
1. Respondent is a Delaware corporation with its principal office or place of business at
8441 Santa Monica Blvd, West Hollywood, CA 90069.
2. The acts and practices of Respondent, as alleged herein, have been in or affecting
commerce, as “commerce” is defined in Section 4 of the Federal Trade Commission Act.
3. Respondent is a video entertainment company that produces and distributes content
relating to video games and gaming culture via a multi-channel network (“MCN”) on
YouTube.com. Respondent’s network features original content such as scripted and non-
scripted series, official content from video game publishers and developers, and game-
play videos produced by individual gamers.
4. Respondent’s MCN is one of the top entertainment networks on YouTube, generating
more than 3 billion views each month and reaching over 407 million subscribers.
5. Respondent generates revenue by selling advertising on its network. The advertising
offered by Respondent includes video ads that appear prior to or in the middle of selected
content, display ads, and other advertising formats available on YouTube.
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6. In late 2013, Microsoft Corporation released its Xbox One gaming platform and
published three companion video games — Forza 5, Dead Rising 3, and Ryse: Son of
Rome (“Launch Titles”). In the months leading up to the release, Microsoft, through its
advertising agency Starcom MediaVest Group, Inc. (“Starcom”), embarked on a global
advertising campaign to promote the Xbox One and the new Launch Titles.
7. In mid-2013, Respondent submitted a proposal to Starcom and Microsoft to market the
Xbox One and the Launch Titles on Respondent’s YouTube network. In addition to
proposing traditional display, pre-roll, and other advertising, Respondent proposed
leveraging a group of “influencers” that Respondent could “incentivize . . . to create
content” on YouTube. These influencers would make and upload their own game-play
videos and “generate millions of organic views around the Xbox One platform and
launch titles” and “build early buzz” surrounding the new platform and games.
8. Respondent eventually entered into a written agreement with Starcom to provide
advertising on behalf of Microsoft as outlined in Respondent’s proposal. Under the terms
of the agreement, Respondent committed to engage its influencers to create videos
promoting the Xbox One and the Launch Titles. Respondent promised that the influencer
videos would “not portray [Microsoft], the Xbox One, or the Launch Titles in a negative
manner,” and Microsoft could request that Respondent take down any video that violated
this promise. Respondent guaranteed that the influencer videos would be viewed a
minimum of 19,000,000 times.
PHASE ONE OF RESPONDENT’S INFLUENCER PROGRAM
9. In Phase One of Respondent’s influencer program, Respondent recruited five of its
influencers to produce and upload two video reviews each. The statement of work given
to each influencer provided explicit instructions as to the content of each video.
10. Respondent directed each influencer to include in their first video review:
Montage of past Xbox 360 footage, talking over a game you’re
playing on the Xbox 360, etc.
Two to three talking points detailing what features you’re looking
forward to in the Xbox One
Announce that you will be playing Ryse on the Xbox early
Video will be at least 2 minutes long in length
Video showcases Microsoft products in positive light
Respondent directed each influencer to include in their second video review:
Capture Ryse gameplay in Machinima office
Two to three talking points detailing what you like about the game
Video will be at least 2 minutes long in length
Video showcases Microsoft in positive light
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Respondent provided separately the talking points to be covered in each video.
11. According to the statement of work, the videos produced by the five influencers were
Respondent’s property, “work-made-for-hire with Machinima as sole owner of all rights,
title, and interest, including any and all copyright therein, worldwide, in perpetuity.”
Pursuant to a separate promotion agreement with Respondent applicable to all of
Respondent’s campaigns, the influencers “agree[d] to keep confidential at all times in
perpetuity all matters relating to” their agreement with Respondent.
12. The five influencers were required to create and upload the videos to YouTube before the
Xbox One and Launch Titles were available to the general public. To facilitate the
creation of the videos, Microsoft provided Respondent with pre-release versions of Ryse
and the Xbox One console, and Respondent made them available to its influencers.
13. In November 2013, each of the influencers uploaded to their individual YouTube
channels the two videos ordered by Respondent. Respondent, Starcom, and Microsoft
reviewed and approved each of the videos. Respondent compensated each influencer in
accordance with the influencer’s statement of work with Respondent.
14. Neither the statements of work nor the master promotion agreement with the influencers
required the influencers to disclose in their videos that they had been compensated.
Respondent did not otherwise oblige the influencers to disclose in their videos that they
had been compensated.
15. Respondent paid influencer Adam Dahlberg $15,000 for the two video reviews that he
uploaded to his YouTube channel “SkyVSGaming.” In his videos, Dahlberg speaks
favorably of Microsoft, Xbox One, and Ryse. Dahlberg’s videos appear to be
independently produced and give the impression that they reflect his personal views.
Nowhere in the videos or in the videos’ descriptions did Dahlberg disclose that
Respondent paid him to create and upload them. Dahlberg’s first video received more
than 360,000 views, and his second video more than 250,000 views.
16. Respondent paid influencer Tom Cassell $30,000 for the two video reviews that he
uploaded to his YouTube channel “TheSyndicateProject.” In his videos, Cassell speaks
favorably of Microsoft, Xbox One, and Ryse. Cassell’s videos appear to be
independently produced and give the impression that they reflect his personal views.
Nowhere in the videos or in the videos’ descriptions did Cassell disclose that Respondent
paid him to create and upload them. Cassell’s first video received more than 730,000
views, and his second video more than 300,000 views.
PHASE TWO OF RESPONDENT’S INFLUENCER PROGRAM
17. In Phase Two of the influencer program, Respondent recruited members of its entire
network of influencers to produce and upload videos. Respondent promised to pay each
influencer $1.00 for every 1,000 views of an influencer’s video, up to an aggregate cap of
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$25,000 for the entire campaign. Phase Two was open to any influencer willing to sign a
Video Campaign Agreement (“VCA”).
18. The VCA imposed several conditions that had to be met before an influencer could be
paid for producing and uploading a video. Among other things,
The influencer’s video had to be at least 60 seconds long and include at
least 30 seconds of gameplay or other footage from any combination of
the Xbox One and the Launch Titles within the first two minutes of the
video.
The video could not contain anything negative or disparaging regarding
Machinima, Xbox One, or any Launch Title.
The video had to provide a link to either the Xbox One YouTube Channel
or another qualifying video on the influencer’s YouTube channel.
The video had to be uploaded to the influencer’s YouTube channel and
tagged with the “XB1M13” tag.
19. The VCA included a confidentiality provision requiring the influencer to “keep
confidential at all times all matters relating to [the] Agreement,” which included the
conditions listed in the previous paragraph and the influencer’s compensation.
20. The VCA did not require Respondent’s influencers to disclose that Respondent had
offered compensation in exchange for creating and uploading the video.
21. Respondent’s influencers produced and uploaded to YouTube over 300 videos that,
between November 22 and December 31, 2013, generated more than 30 million views.
In many of the videos, influencers spoke favorably of Microsoft, Xbox One, and the
Launch Titles, and the influencers gave the impression that their videos were
independently produced and that their comments reflected the influencer’s personal
views. In numerous instances, nowhere in the videos or in the videos’ descriptions did
the influencers disclose that Respondent had offered compensation in exchange for
creating and uploading the video.
22. At the conclusion of the campaign, Respondent compensated the influencers for their
videos in accordance with the VCA, up to the $25,000 aggregate cap.
VIOLATIONS OF THE FEDERAL TRADE COMMISSION ACT
23. Through the means described in Paragraphs 9 through 22, Respondent has represented,
directly or indirectly, expressly or by implication, that video reviews of Microsoft’s Xbox
One and the Launch Titles reflected the independent opinions of impartial video game
enthusiasts.
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24. In truth and in fact, the video reviews for Xbox One and the Launch Titles did not reflect
the independent opinions of impartial video game enthusiasts. Respondent’s influencers
created the video reviews as part of the global advertising campaign to promote sales of
Xbox One and the Launch Titles. Therefore, the representation set forth in Paragraph 23
was, and is, false and misleading.
25. Through the means described in Paragraphs 9 through 22, Respondent has represented,
directly or indirectly, expressly or by implication, that favorable video reviews for Xbox
One and the Launch Titles were posted online by individuals who had played Xbox One
or the Launch Titles. In numerous instances, Respondent has failed to disclose, or
disclose adequately, that the individuals who posted the reviews were compensated in
connection with their endorsements. This fact would be material to consumers in their
purchasing decisions regarding Xbox One and the Launch Titles. The failure to disclose
this fact, in light of the representations made, was, and is, a deceptive practice.
26. The acts and practices of Respondent as alleged in this complaint constitute unfair or
deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the
Federal Trade Commission Act.
THEREFORE, the Federal Trade Commission this ____ day of ____, 2015, has issued
this Complaint against Respondent.
By the Commission,
Donald S. Clark
Secretary
