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

[TwinTails]

Thanks so much for this guys, I had somewhat forgotten about fair use though now I can keep some of my videos I had previously decided to privatise in future ^_^

 

[Flammy]

That`s funny because I have a quote that says otherwise *logs onto skype*

He didn't jump out and say it. There was a good bit of run around first of "Does vultra have any agreements with devs to allow monetization?" "You can monetize all games" --- Note, that doesn't actually respond to the question, it doesn't say WHY you can monetize all games. I kept digging and eventually got to the above quote, which was pretty much what I thought the situation was like... the networks just don't want to admit to it.

You need to know what questions to ask. You also want to ask yourself "If someone is trying to keep me from finding the truth, are our motives truly in line with one another?"

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.
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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.
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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.

Good comments on all points. There is a very valid reason why this works with gameplay much better than other mediums:

• beneficial to both parties
• Work is very transformative and not repeatable
• Commentaries ARE typically rather educational

 

[Tarmack]

There is one other, what I would consider major benefit to networks. It removes the "adsense dance" that you have to do with game footage. No more copy pasting terms, appealing monetization refusals. heh. It removes that hassle.

 

[TigerXtrm]

He didn't jump out and say it. There was a good bit of run around first of "Does vultra have any agreements with devs to allow monetization?" "You can monetize all games" --- Note, that doesn't actually respond to the question, it doesn't say WHY you can monetize all games. I kept digging and eventually got to the above quote, which was pretty much what I thought the situation was like... the networks just don't want to admit to it.

You need to know what questions to ask. You also want to ask yourself "If someone is trying to keep me from finding the truth, are our motives truly in line with one another?"



Good comments on all points. There is a very valid reason why this works with gameplay much better than other mediums:

• beneficial to both parties
• Work is very transformative and not repeatable
• Commentaries ARE typically rather educational

Yes, but like he said, if a developer wants to take it down then it will get taken down before you get your say in things (unless you are part of a major network who is willing to help you out). You could take it to court and given all the fair use variables you'd be likely to win. But these companies know that hardly any Youtuber has the money and/or time to actually start a lawsuit and rather take their losses. Those things often take months and can leave your channel with irreparable damage, even if you win.

In general I would recommend that, while you legally can use game footage under fair use, be careful about what developers and companies you intend to cross paths with. Do some research in how aggressive they are in taking down videos or claiming them for their own. Some allow it 100%, others don't care, others will go to great lengths to take everything down (companies from the stone age mostly ).

 

[Tarmack]

...snip...

The best example of this and how little protection YouTubers have is Sega. They attacked channels with Shining Force videos. This included gameplay footage and even some videos of people just talking about shining force with no copyright content of any kind. Unfortunately for them that also included some of TotalBiscuit's videos, which was something of a PR misstep that they're still paying for because he has 1M subs and a very good and loud set of morals. And the channels they destroyed, still not all back up and running. Fair use does not beat DMCA, even when DMCA is wrong.

 

[Shortbread]

Yeeees, thank you for this. I'm so sick of the misinformation that is spread about the supposed licenses that gaming networks have. Even some of the biggest networks, like TGN strongly recommend that you have commentary to claim gaming videos for monetization so that they coincide with YouTubes rules on using gameplay footage. It was in their copyright handbook, but I can't find it now because it seems they're transitioning to a brand new website layout.

However, I think you should edit the last part about Microsoft games. In the very article you linked to, a developer commented saying it's just legalese and isn't meant to stop people from monetizing game footage.

The language isn't designed to stop kids streaming their games, or covering their costs, it's designed to stop big companies from using somebody else's IP to run a business.

We'll put together some language that will help community people navigate this easily, and give people workarounds.

 

[Flammy]

However, I think you should edit the last part about Microsoft games. In the very article you linked to, a developer commented saying it's just legalese and isn't meant to stop people from monetizing game footage.

I agree, it sounded much more like a 'card up the sleeve' play they could pull out if needed, but obviously Microsoft isn't going to go around playing Wack-a-Mole with individual YouTube channels. At the same time it is representative of some publishers attitudes (Sega, EA, as well) so it is good to point out that situation. I think I'll leave it in there until Microsoft clarifies further.

 

[SuddenlyNinja]

A very interesting read, thank you for that!

 

[Parallax Abstraction]

Hey everyone. That OP was indeed a very interesting read, thank you for the information. So I'm in kind of a weird place here and I'm hoping that maybe you folks can provide some clarification for me. I have recently launched two shows on my channel. One is focused on retro games and it's me providing commentary over captured footage of retro titles. They're an average of 20 minutes long and involve me playing the games and talking about them and their relevance to gaming literacy. The second show is a co-op focused series I'm doing with a friend of mine. It is basically a Let's Play with our own brand of commentary. It's broken up into episodes but we intend to finish the games we play from front to back.

I'm currently enabled for monetization but don't have it enabled for the videos. We just started so we're slowly building up our community and eventually, I hope to get partnered with a network. Now, one of the main reasons for this was the supposed copyright protection and licensing agreements they have, both concepts of which this thread calls into question. Here's what happened when I tried to enabled monetization on all my videos:

-A couple of episodes of my retro series were approved.
-The one episode of our Let's Play series that was up was approved.
-All my videos that did not have game play footage were approved.

However, I received an e-mail from YouTube saying that some of the videos required clarification and they basically wanted me to assert that I had commercial rights to all the content contained in them, stating that if I didn't, the videos could get taken down and repeated attempts to monetize them could result in a ban. I panicked and turned off monetization for any video with game play footage.

From what I've read here, everything being done in those shows can be considered Fair Use, even though I'm aware YouTube will always side with copyright holders if a claim is made. Would you say that I'm OK to say I have the rights to use the content? YouTube didn't ask me that question, they asked if I had commercial rights to all the footage, which in my mind isn't the same thing as asserting that I have Fair Use rights. I did capture all the footage myself. It involves other companies' products but it is my footage, I'm not sure which they are referring to. If I say "Yes, I do have these rights", could YouTube take that as a false statement and penalise me, even if a copyright holder doesn't complain? I just want to make sure I can tell them "Yes, I want these video monetized" without them going "You lied about owning that footage! Ban hammer!"

I figure this is a common issue that people have often dealt with here. Can anyone advise what you think I should do? I understand that you are not lawyers and I of course will not hold anyone responsible for advice that doesn't end up working in my favour. My hope is still to get partnered with a network some day but if they can't provide any more protection on the copyright front, I might as well attempt to monetize now. Thanks!

 

[Flammy]

-A couple of episodes of my retro series were approved.
-The one episode of our Let's Play series that was up was approved.
-All my videos that did not have game play footage were approved.

YouTube approval is super super random. Yes, literally random. If I upload 4 videos (same content, same commentary, same audio, same upload time, same everything), roughly 1 will be auto approved, 2 will be approved after review, and one will be denied.

Do NOT use their approval-or-not as a basis if you are in the right or in the wrong.

You should google all of the games to see if there are reported issues with monetizing and if they have any permissions (or otherwise) posted online in regard to their use. (sega monetization, sega fair use youtube, etc)

Note that if you're uploading gameplay, there is pretty much no difference if it is monetized or not.