How ANYONE can monetize gameplay WITHOUT a network: A lesson in Fair Use

AFTER reading this thread... (select all that apply)

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Flammy

Flammy

Shooting Down Idiots
This post has been made primarily to refute this thread. Why? Because that thread is simple wrong. You CAN monetize gameplay footage, you simply need to know the restrictions on it, that even the networks follow.

Note: None of the following should be taken as legal advice. I'm not a lawyer.

You hear it all the time:

Don't monetize gameplay!
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You might get a strike if you monetize gameplay footage without being in a network!
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And the worst:
Networks have agreements with publishing studios to monetize their content.
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The amount of disinformation, misinformation, and propagators of these incorrect facts its absolutely mindblowing. So, how can you safely and legally monetize footage?​
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Case 1: The developer/publisher has pubicly given everyone permission to monetize
Examples:​



Case 2: Fair Use
Fair use law is very ambiguous and not very clear. What it specifically says can perhaps be summarized as​
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These things should be taken into account when determining if something is fair use:
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  • Purpose and character of use (educational or review purposes?)
  • Is it for monetary gain
  • Nature of use
  • How it relates to the copyrighted content in material and scope
  • Impacts, positive and negative, on the copyrighted works
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Note, fair use does NOT say that "if you are bad on 3 of the above points, you're in violation" or "if you only use <1 minute of copyrighted content you're fine" --- This means, in court, Fair Use is determined on a case by case basis.​
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Now, the important thing is, how is this law actually applied in practice on YouTube today?
Basically, the short version is:​
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  • If you monetize gameplay footage AND have relevant commentary (educational or for review purposes!) you're in compliance with Fair Use.
  • If your content isn't harming the image of the game, that helps too (also helps keep various publishers not p****d off at you)
But what if a publisher is really p****d off at me for some reason and wants a video taken down?​
YouTube is going to side with the Copyright holder. YouTube doesn't want to get themselves sued.​
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So does being in a network in this situation help?​
Yes and no. Networks can try to work with YouTube, giving your channel a bigger voice, but if someone is really persistent then they aren't going to be able to protect you (just look what happened to TotalBiscuit - If a network can't protect him against that sort of abuse, they aren't going to be sticking their neck out too far for your average channel either)​
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Wait, what about Networks and their 'agreements' with publishers?
Those agreements don't exist. Period. I have talked with dozens of employees of networks and recruiters. I have heard no evidence beyond rumors and rumors of rumors that any network has any sort of agreement with any publisher. If you have evidence to the contrary, feel free to contact me and I'll include it here.​
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But if that is true... how do networks allow monetizing of copyrighted content?
Fair Use. Yup, really. Networks are using the exact same law that any individual can use to earn money off of copyrighted content on YouTube. That is why, even when part of a network, you are bound by rules and restrictions. Those are designed to keep you roughly in line with Fair Use. Can't upload game trailers in their entirety without associated commentary? Because of fair use. Have commentary over the top? Fair use.​
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But... Networks still have some advantages, right?
Yes. Networks have access to Content-ID, YouTube's system for handling copyright claims. Networks can claim content as their own. This allows them to claim content as their own, effectively affirming that it accurately falls under fair use. Also, if someone does request a take down of a video, you get extra options/support to fight it.​
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Does this network advantage really matter?
I honestly don't think the network's advantage matters at all... when it comes to avoiding copyright issues in the first place. Why? Because a publisher doesn't care if you have your video monetized or not if they want it down. A video that has game footage is still copyrighted, regardless of the monetizing status of it. So if you have dozens or more videos uploaded without monetizing enabled, and have never had and any issues to date, in my experience you will be fine monetizing it.​
Networks definitely still have an advantage when it comes to dealing with copyright strikes if they occur, because they have an extra voice in negotiating a peaceful resolution. However this shouldn't be an issue if you use common sense (don't use copyrighted music!) and don't p**s anyone off (uploading hacking videos? obscene amounts of swearing at a game? Doing something that really hurts the image of the game? All probably bad ideas)​
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How do I know you're not making all this crap up and just got lucky with your own channel?
Well, you can always read the Copyright section of The Gamer Network's handbook (http://tgn.tv/handbooks/#copyright) and you'll see it says exactly the same thing, without pointing out that all of their rules derive from Fair Use.​
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Wait, just by having a commentary, its educational?
Yup. Sure, it gets stretched pretty hard when the uploader goes off topic and starts talking about what you ate for breakfast, but yeah, 'educational' commentaries are the way to go. This is why networks say commentaries should be related to the gameplay --- because if it is, it is at least tangentially educational.​
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Too long, didn't read!
Well, you should, but basically:​
  • Anyone can monetize game footage with associated at least quasi-educational or review commentary
  • Networks having 'agreements' with publishers is a load of sh--... unsubstantiated rumors.
  • Be smart
  • Fair Use is awesome
  • Don't believe everything you read on the internet (This post included! Do your own research!)
Lastly...
Also I don't recommend monetizing any Microsoft games listed in this article, because Microsoft has basically taken the stance 'No, this is not fair use' and is just waiting for someone to engage them in a lengthy court battle over the issue. http://www.examiner.com/article/microsoft-removes-halo-4-forza-others-from-monetization-on-youtube​
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"Fair use is a copyright principle based on the belief that the public is entitled to freely use
portions of copyrighted materials for purposes of commentary and criticism. For example, if
you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s
work without asking permission. Absent this freedom, copyright owners could stifle any negative
comments about their work.
Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute may
have to be resolved by a lawsuit or arbitration. If it’s not a fair use, then you are infringing upon
the rights of the copyright owner and may be liable for damages.
The only guidance for fair use is provided by a set of factors outlined in copyright law. These
factors are weighed in each case to determine whether a use qualifies as a fair use. For
example, one important factor is whether your use will deprive the copyright owner of income.
Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use
road map can be tricky to navigate.
Throughout the past years, copyright and fair use has been a hot topic among the legal system.
The defined portion of time usable in videos and elaboration is ever changing and cannot be
pinpointed to a certain percentage or time frame anymore. In a lot of cases, the original content
creator has the final say. If one were to hold a notice stating a fair use, the copyright owner
could dispute the fair use claim on any terms that he/she feels necessary."

Fair use allows you to use between 3-30seconds of content for quoting or review purposes ;)
 
Shane said:
I didn`t even bother read the post, I`ve just come to say :
1) 85%+ of AAA titles require a license
2) Networks that have these include Machinima , Base79 and Vultra.
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Uh, thanks for not reading, I guess. Before bashing, try to not judge a book by its cover?
2) And every other network out there? Even if those 3 *do* have agreements, they can't possibly have them with even 50% of developers, and every other network still needs to have the same agreements, yet all allow monetization of game footage. Which developers do they have agreements with? What are the terms? Are they exclusive rights to monetize?

You can bet that any agreement would take the above into account, especially with a large studio.

I repeat what I said:

I have heard from network owners and employees themselves that they have themselves have no such agreements, and while they have heard rumors of other networks (especially machinima), they have don't know any details and acknowledge they are only rumors.

quote="Shane, post: 359636, member: 5804"]Fair use allows you to use between 3-30seconds of content for quoting or review purposes ;)[/quote]

The interpretation you quoted perfectly accurate, thank for for posting that.

"3-30 seconds" is NOT written anywhere. You could get in trouble for posting a 5 second sound byte of audio just as easily as posting 60 seconds of audio. it all comes down to if the owner agrees with you.

Lastly, I submit that Shane, while a network owner of his own right
 
Sir Derpington said:
Uh, thanks for not reading, I guess. Before bashing, try to not judge a book by its cover?
2) And every other network out there? Even if those 3 *do* have agreements, they can't possibly have them with even 50% of developers, and every other network still needs to have the same agreements, yet all allow monetization of game footage. Which developers do they have agreements with? What are the terms? Are they exclusive rights to monetize?
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I was talking about licenses for AAA titles only, smaller publishers/indie devs such as Paradox Interactive tend to have public licenses that let anyone use their visual/audio content.

And no of course no network has one with every publisher, Most game content with network seems to fall under the rule of "We`ll turn a blind eye when we`re making money" lol :D
 
Shane said:
I didn`t even bother read the post, I`ve just come to say :
1) 85%+ of AAA titles require a license
2) Networks that have these include Machinima , Base79 and Vultra.
Click to expand...

Fair use does not require a license, that's why it's fair use. Period. If a gaming video is considered fair use is different on a video per video basis and some developers might actively try to shut you down more than others. But you CAN make money off video game footage. If you don't want to take my word for it, just go look at the hundreds of channels actively monetizing CoD footage and making quite a few bucks off of it.

As for networks having licenses; the chances they have a license for every single video game every made is virtualy impossible. They may have agreements with major publishers but in the end you hardly ever need it. Hell I mailed EA once to ask for permission and they simply told me that they are fine with monetizing footage of ALL their games. Company policy, so I was told. EA is THE biggest player in the industry, which makes it abundantly clear how useless those licenses are.

Additionally, fair use in this case is often heavily in favor of YouTubers. The footage is unique and altered since every single recording is by definition different and everyone plays in a different way. Footage is often educational or for review purposes and teaches the viewer something about the game (how to play it or if it's good or bad). The footage NEVER takes away from the copyright holder's income because viewers can not play the game and the person playing has already paid for his/her copy. In fact in almost all cases the footage is considered free advertising and thus a positive influence on the copyright holder. And in some instances it can even be argued that while the game is property of a developer, the footage of said game is made and owned by the person who filmed it. And lastly there is no true breach of copyright because nothing is being copied. We are not taking the games and selling them for profit. We are merely showing off the game someone else has made to an audience.

Because of all those things it would not only be very risky to bring such a case to court, it would also be insanely stupid. YouTubers essentially make free advertisement for the games in question. A game developer would have to be very stupid to try and take that down. At the very most they might claim the video and put their own ads on them, but the chances of getting a copyright claim because of them are slim to none.
 
Shane said:
I didn`t even bother read the post, I`ve just come to say :
1) 85%+ of AAA titles require a license
2) Networks that have these include Machinima , Base79 and Vultra.
Click to expand...

Here is a quote directly from Vultra CEO:

[12:22:01 PM] Flammy: Are there any developers that there is a better agreement in place with? Beyond the sort of default fair use that everyone has?
[12:22:49 PM] Shawn Haupage | Vultra CEO: Not really, there's no real better agreement
[12:24:18 PM] Flammy: K, so...
Vultra allows monetization of all games because of fair use...
and here are no specific agreements or contracts with developers/publishers/studios?
[12:24:48 PM] Shawn Haupage | Vultra CEO: Yes
[12:25:04 PM] Flammy: Thanks for clearing that up
Click to expand...
 
The thing about Fair Use is that on YouTube it's largely irrelevant as a defense. The DMCA takedown rules trump everything. Taking an issue to court, you may well win with a Fair Use defence, but it doesn't get that copyright strike removed or video put back up.

Or like the parody rules under Fair Use. Yeah, technically the artist can't stop you from making a parody of their song. They can't even stop you from making money on it. You still have to legally pay royalties though. Most people gloss over that part.

That's a very interesting quote if true from Vultra. It's actually not all that surprising and makes one wonder about these nebulous licenses and whether they actually exist for most places. I'm starting to suspect that they don't in the general sense. Far more likely are specific embargo agreements around launch events, trailers and such. And as with many things on the internet, it stands to reason the proliferation of claims about which network has what license has spread all on it's own.

It's also completely meaningless to quote people saying they do or do not have licenses for particular things. Either you've seen the document, or it's heresay.

So IMO while the OP post is quite informative, it isn't really that useful. We are all relying on fair use, but as we saw with Sega and Shining Force content, it doesn't take much for our covetted "licenses" via networks to be of no use at all.

Be careful. Don't upload anything that can be content matched automatically by software (copyrighted music or specific video such as movie scenes, cutscenes, intros, trailers). These things are content matched because they are the same every time, while gameplay cannot be content matched without a viewer physically checking it.
 
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