How Do GamePlays & Walkthroughs Affect Creator Rights?

Introduction

Lately the entertainment industry has been coming up with a wide variety of content to ensure their users have a different experience from what they have experienced before. When it comes to games, several game development companies have been doing everything in their power to develop games that are more user interactive.

User interactive games involve a gamer to decide the outcomes of the story in the game and also interact/explore interesting elements created in the game, thereby putting the user in the shoes of the Player in the game. With games coming with such interesting features the sales of such games are very much likely to shoot up. However, while that is one side of the coin, the other side to this is the role played by Gaming Youtubers and Twitch Streamers.

Youtube and Twitch are platforms that have been used extensively by gamers to upload game related content. Many streamers and gamers make a living by playing the game while commentating on various aspects of the game and uploading the footage of the game on such platforms. The effects of uploading such gameplay footage, whether it has created a dent in the sales of such games, and whether such content violates any existing copyright laws in force is what will be discussed in this article.

Has Do Gameplay Footage Affect the Incomes of Game Designers?

In 2016 a game called ‘That Dragon, Cancer’ was released. It was a narrative-driven art-adventure game focused on the real life and unfortunate death of Joel Green, who was diagnosed with terminal cancer at 12 months old. Following the diagnosis, Joel lived for four years before succumbing to the disease. The game, despite these unusual elements, went on to achieve critical success. However, the game, which was started by parents Ryan and Amy Green, has not yet seen a single dollar from sales. Ryan and Amy Green were left without a profit, and Ryan’s blog post blames GamePlay walkthrough videos on sites like Youtube and Twitch to a large extent.

Companies like Nintendo have taken measures to address the potential loss in revenues when it comes to video game play-throughs published online. However, the same means cannot be adopted by smaller studios and small game developers.

Companies that can afford to benefit from various corporate affiliated programs, in addition to ensuring that their sales aren’t affected also go an extra mile and make copies of a particular game available early to specific content creators. These creators have a massive amount of subscribers, and the intention is to get their feedback on the game as they play the game and upload the footage of the same on the abovementioned platforms. While small businesses like Numinous Games are failing to turn a profit, Gamers posting gaming footage like PewDiePie make anywhere around $140,000 to $1.4 million every month.

Gamers who stream gameplay footage on platforms like Youtube and Twitch make money by monetizing the number of views or clicks their video gets. These gamers also get paid for having an ad posted on their video. When it comes to platforms like Twitch, some streams need to be purchased in order to be viewed. These subscriptions are often more affordable than higher-tier games, and there may be viewers  don’t feel the need to pay a big sum for purchasing the game and playing it, but can witness each and every feature of the game by paying a nominal fee to watch a stream of another person playing the game.

A Legal Grey Area

Youtubers and Twitch streamers who upload gameplay footage claim that they play the role of a journalist by commentating on the game and also helping other fellow gamers like themselves. They argue that commentating while playing games constitute fair use of the copyrighted material, however, the same has never been tested in the court.

The application of fair use in this context is an unchartered territory which has not been deliberated upon in the court of law. Mira Sundara Rajan, a lawyer specializing in intellectual property and a visiting scholar at Stanford Law School stated that “the fit between the existing copyright framework and the new technologies and what’s possible through them, in terms of use and dissemination, is really, really bad.”  According to her, even if courts had to give a ruling on video games and fair use, it is unlikely that the precedent would stick.

Current copyright laws in countries like the USA and Canada aren’t diverse enough to clearly elaborate on the issues of uploading a video game footage on public domain. However, professionals believe that a legal precedent on the nature of video game footage would cause big change in the industry and qualitatively change the relationship between the people who are playing games and the people who are making them. The way the things stand, matters have not escalated enough to be heard by courts. One of the many reasons for this being that the relationship between the creators and big-time developers have been maintained in a delicate balance so far. But such an arrangement favors only creators and developers with large followings and resources, leaving smaller creators in the dust.

Author: Nihal Raj, Legal Intern at PA Legal.

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