Ok with Nintendo claiming ad revenue from Lets plays I thought rather than writing a blog bashing / defending them Iíd do a blog that might be useful to some people.
Now Iím not an expert, Iím not a copyright lawyer, none of what I say now holds legal water in court and shouldnít as gospel or used to prove your rights to someone however itís based on my own experiences. †
†Iím not a lets player, I am however a youtube partner, and I actually mean Iím a partner from before the days when anyone could monetise content, I got the old invitation email from youtube to become a partner. I havenít done a huge amount with my partnership and at present to keep going I have to work out a few things regarding software and licence changes first. However in my short spell on youtube I think Iíve dealt with copyright issues more than anything else and as Lets plays are at their core a copyright issue in waiting weíll start there.
At present Lets plays exist in the copyright grey area, more so than most things. The argument is that itís a transformative work on the legal side of things. As such transformative works are allowed under fair use, unless itís a machine and you name is Microsoft as Rooster Teeth found out in the early days. The question is how much of a transformative work is it. Valve actually have rules governing the use of source film maker stating that you can make money but you need to make your own characters and props and canít profit off their characters. Thatís Valve saying that.
The Logic argument goes like this. You can play a board game or game of chess and show that on youtube without having to pay royalties to the maker of those. The inventor of footballís family donít receive royalties still for every match of football played and shown on TV not that goes guess what the players. The experience of a game should be in the playing not just the watching, unless youíre Rise to honour on PS2 in which case watch away because itís better than playing it. As games strive to become more like films both budget and spectacle wise itís debatable if theyíre losing the fun factor in playing them, but thats a blog for another day.
How can a game look this good but play so awkwardly, seriously who thought using the thumbsticks only was a good idea for a fighting game ?†
So now you know Lets plays arenít exactly protected by law only logic. Technology is evolving faster than laws can keep up and the digital media copyright act while a compromise itís a compromise where neither side really got their way. Companies can still screw with people doing transformative pieces and yet big companies donít get to fully decide and dictate the rules entirely. However knowing the rules of this work well for you. Basically one of the rules states that if a company wrongly DMCAís you then you are not only entitled to compensation but also all perceived lost revenue and expenses brought about by the DMCA claim. That piece of information alone is a huge cannon for you in reserve.
So are there any games you can legally letís play and not get in trouble ?
Well any game can bet lets played however you need to seek permission first. Starting out expect to have to take time and expect to be contacting companies, most likely PR or sales team to discuss doing a lets play of their game and explaining how youíre seeking their permission because you wish to monetise it. Youíll find companies far more helpful that youíd think if you spin it to make them sound like theyíre getting something out of it, explain why you want to monetise your content to them briefly saying it will help further improve quality going forward. Explaining why is a good thing as not everyone realises that people do need this ad money to improve. Hereís a reviewer called Linkara who hosts a comic book review show talking about ad revenue a bit for you and more specifically ad block.
You see itís not till you start using an ad funding service that you really realise what ads pay and how many people view them in reality. Iíd estimate on my youtube and blog at best 40% of people view the ads, thatís based on view feedback I receive both on the adverts and on the content itself. Heck My blog doesnít even register you reading the article if you have an ad blocker on it only registers that a person visited the place so I can easily look at the individual article views for the day and compare that to the total views. Put it this way, if I lived off my site I might manage one thing off the McDonalds $1 menu a week to live and nothing more, not rent or anything else like that, to get decent pay you need the hits or a contract of sorts with a youtube network. With Blip TV the pay is different to youtube as youtube pays more for ad impressions, a single Ad click can make fifty times what 200 views of the ad make. Iím not even joking thatís impression based adverts. Now True View ads those unskippable 20 second or so one pay more than the skippable ones but still less than an ad impression Blip Pays pretty much a set amount per X views which is the same as youtube networks normal policies (I'll talk about them later )
Congratulations youíre now aware of the stark reality of youtube and if youíre still reading this then you should be someone who should do lets plays as youíre in this for more than the money. †
So a lot of you are probably sitting here wondering what the hell are you supposed to do when every game needs permission to lets play it. Well itís not quite true there are at present a few games you can lets play without permission they are:
Scrolls (The upcoming card game by Mojang)
DLC quest live freemium or die
Games by Team Meat, e.g. Super Meat Boy
Amnesia (fictional games)
Magicka (Paradox interactive and other games they make)
League of Legends / Riot games, being in the youtube partner program is classed as sufficient by them, though to be safe Iíd make sure youíre networked for this one.
Beat Hazard Ė fine as long as you include a link to where viewers can buy the game though you then need a license to use the music separately
Chivalry Medieval Warfare
Garyís Mod Ė though its iffy due to Valve model content but still its there.
Kerbal Space program Ė A link and the copyright holders name is sufficient for them
Towns Ė Link to the somewhere the game is sold
Unofficially Guild wars 2, they claim itís against their terms but itís been hinted they have an intentional blind spot when it comes to fan stuff.
Valve Ė taken from their Legal page ďYou are free to monetize your videos via the YouTube partner program and similar programs on other video sharing sites. Please don't ask us to write YouTube and tell them its fine with us to post a particular video using Valve content. It's not possible to respond to each such request. Point them to this page.Ē
Perfect World games
Trion worlds - but its iffy as you need to adhere to certain advert restrictions and set adsense up to fit so the following doesnít happen, no adverts from Trion competitors (so no other MMO, FPS or RTS) No gold farming / farmer adverts. The content of adverts must keep with the ESRB for the game.† †
These titles have had their developers pretty much publicly come out and said people can do monetised lets plays of them. Minecraft and Scrolls have specific stipulations with them first you must make it clear you are in no way connect to or speak for the developer (I know obvious right but itís just incase) and secondly you must actually make it your own somehow by at least adding a commentary track to play or doing cool video editing stuff. Essentially the Mojang requirements are that you make it a transformative piece then you can make money as youíve at least done something with it which Iíd say is fair enough as I can see the argument against just plain straight through plays with nothing added being original content as such. Itís kind of shocking to me at least that more indie developers arenít getting on this train officially as hey, itís publicity and as games are seeing coverage really does help them, especially in the Indie scene where people are more likely to not buy your game because theyíve never heard of it than any other perceived monster in the room stealing sales, except pirates, but then the only way to stop Pirates is pretty much to just screw with them as DRM will be cracked in only weeks anyway. Basically if you want to begin as a lets player, youíre best asking indie developers because chances are theyíll not have marketing agents and PR guys breathing down their neck and will go ďYeh sure why notĒ also youíll normally find them easier to contact and quicker to respond.
So now onto general etiquette things once youíve got ready at last. First always make sure you state in video descriptions, the name of the game, who owns it and importantly here that youíve got permission to do it (because you should have got it, if you donít then you canít put this and have little defence initially to stop the video going down). So also record or screen grab a copy of the email giving you permission to lets play the game, place this in an unlisted video, Iíll explain why in a bit. So youíve made sure people know who made the game, what it is and said you are not associated with them and your views do not represent the developers or publishers, they are your own views. Finally having done that itís time to make sure youíre giving your dues to the developer / publisher, add in a link to where people can get the game and link it using a bit url. You see the advantage of placing a bit URL instead of the standard URL is simply this, you can track how many people are going through it to the game, itís a simple process of adding a + after the URL Iíve been lead to believe. †
So now how to deal with it still going pear shaped. Your first content ID match. Itís important to stay calm at this point, itís going to happen and if youíve prepared as Iíve set out you should be more than ready to deal with this. Once you hit maybe 1,000 views on a single video expect to see matches begin to show for your videos maybe not even the 1,000 hit one but others too as youíve been noticed and you donít know who by so itís time to carry on and find out. †
So firstly check who is claiming the content and what they are claiming, youtube will tell you who is claiming and what part of the video they are claiming. Now you know the publisher and you know the developer for the game, if itís not one of them then search to find out who it is. Like it or not out there are some real nasty pieces of smeg who actually make considerable money out of people by false claiming videos and taking ad revenue because some people just accept it or donít bother fighting them. You will be fighting them, armed with your research into who they are and that they lack a claim, dispute the claim and point out the actual content owners and state you already have permission from them to do this video and that you believe the person now claiming has no rightful claim to the content. After having done that remind them itís illegal to file false DMCA claims if you are not the content owner or associated with them. Most of the copyright leeches will back down at this point because well they know you are in the right and also that you can call in the big guns of youtube or the actual owners against them. Even if theyíre not scared of you, the fact they are claiming ad revenue and ownership of content someone else owns can open them up to the company suing them.
If itís the Publisher / developer dispute the claim stating fair use, pointing out that you have their permission to do this and linking to the unlisted video to show you have this and finally being able to give them referral statistics from the bit URL to prove people are being sent over and that they are potentially getting sales and publicity from your videos. You donít need to go in strong here as chances are itís an auto detection and not the company being dicks and going after you. Iíve had it before on a 5 second audio clip from South Park in a 30 minute video, the South Park creators were actually amazing about it, I disputed and actually got a message apologising for being picked up, removing the claim and how they liked the video and wished me all the best in the future. This is the problem with an automatic system, it canít spot fair use vs blatant copying. So now youíve learned not to rage right away at the company and that the makers of South Park are some of the coolest guys around.
So the next step, most companies will having had the error pointed out, correct it. Not every company but at this point most know youíre either not some sap or that youíve done everything right and are potentially helping them in the case of the actual publishers / developers. However you should know what to do if they decide to not play ball still. On youtube as a verified publisher you have the option to file a dispute, do not do this yet, filing a dispute is the equivalent of taking off and throwing down the gloves and telling the company to take their best shot, by this I mean court, you do not want court. Chances are the company doesnít want court either as if theyíre in the wrong and you fight them, theyíre screwed but itís costly to do this and they have far more resources than you, in the end neither of you will likely truly win.
So what you have to do is contact the company again. Youíve done it once already so donít feel too bad. So write to them, linking your video and pointing out that you believe itís merely a mistake on their part that you have their permission to do this and that youíd appreciate them correcting the issue. Essentially youíre stating what you did in the dispute because you never know it might have been a monkey who checked out the dispute so going directly to the company youíre talking to the organ grinder. Emailing a company can scare the hell out of them because youíre walking up to their own turf as such and calling them to answer, sure the emails are private but youíre approaching them in a way where you are equals. They have no team of lawyers to defend them with emails, they can either respond or not, not responding gives you more ammo as you can say, ďHey look I did what I was meant to and went out my way to sort thisĒ. This ammo companies know can be used against them, not in a court of law but in the public domain. I have dealt with Apple, yes that Apple this way, I had them claiming ownership of a public domain song Iíd used and approached them this way after they blocked my video from being viewable in all but 4 countries world wide. I had disputed and had it rejected so I pointed out how I wanted them to prove to me that they had the right to the song. Having done this I got an email back thanking me for bringing the error to their attention and they would correct it and release the claim immediately. Its best to allow companies at least 2 weeks to reply before carrying on though. †
What I wanted a picture of a monkey in this blog†
If youíre contacting a company other than the developer or publisher, also contact the developer / publisher and tell them whatís happening and ask them to help, after all its someone else who doesnít have permission making money off both yours and their content, companies can enter the fight if they feel itís worth it. I managed to get mockbuster makers The Asylum to help me before after a company put false claims on a video, I did however offer them something in return and it was that if they copyright claimed it Iíd allow them to display adverts or have a share of the revenue. For me I wanted the video up and while I wasnít getting paid for the video it allowed it to stay up and hopefully got The Asylum to realise Iím not that bad and am a reasonable person. They used resources to help me so I was paying them back in a way. If youíve already got permission to do the lets play then the company will not need the concession from you as theyíve given their consent already and itís in their interest to make people aware of needing that consent.
If nothing so far has worked and youíre now seemingly left with only the dispute option. This one is up to you and I have had no experience with this and as it can lead to court you have to consider what it worth to you. At this stage if the developer / publisher hasnít backed down (because no copyright leech will have lasted this long especially if you get the actual owners involved) you have to look at what itís worth to you, as I said I have a video with adverts with ad revenue going to The Asylum because they were good to me and helped fight off a far more aggressive false claim. If you simply want your content out there and for the fans as such and donít care about the money this time then you can let it stay however if youíre running on just that lets play you might consider ending it an stating why to your fans. If you want to take the shouty moral stance without court you can flip the developer and publisher one giant last middle finger. They want your video and ad revenue, well you private the video. Itís a giant screw you as it stop them making anything, they canít stop you doing this either, itís the last great stalemate you can bring it to where no-one wins and they lose your revenue coming in and the free advertising on one cut. Then you can make a video explaining to your fans what happened, what you did to try and sort it out and as such why you wonít be carrying on that content or why itís gone. Well done youíve just managed to make the company look the fool in public and not only stopped them making money off you but probably cost them a fair bit in the good will stakes as they can be seen to not be a company of their word.
So youíre expanding, youíre developing your lets play channel, youíre getting the hits and the revenue you want to expand, what do you do now ?
Well first if youíre doing well itís time to network. In the present youtube system while you earn far more as a private individual it also gives you a lot more legwork as you have to fight every claim and seek that permission. The idea of networks is they do the deals for you. They pay you a set amount per number of hits which will be less than a very loyal audience can make you on ads but by how much depends on your audience.†
Networks for the most part will scout you and approach you if they want. There are some networks you can approach. I believe the networkHappy Cabbie is with does allow you to apply if youíre reaching certain hits and have a certain subscriber count. Picking a network is important, first they need to understand your content and needs from them; second make sure your obligation to them is clear to you, some networks are fine with as and when content while others require a minimum content production. Along with production check the contact length and make sure itís not one of the hellish permanent lifetime contracts some of the less reputable networks are passing round, the standard contract or so I hear is 2 years. Networks are designed to protect you, they are meant to deal with publishers and developers to sort out content deals so you can lets play as you wish without having to worry about copyright fights again. Once in a network if you have a video copyright claimed either falsely or by the publisher / developer your first port of call is your network, you donít dispute the claim just take it to the network. At present Nintendo arenít playing ball with the networks and are still claiming content and as such ad revenue so yeh being in a network isnít protection from everything but it is protection enough for most things.
So now youíve made it all through this article youíre ready to lets play, that is once youíve got the machine that can record content, the copy of fraps and a decent microphone. Hopefully now you know a little more about how to do this thing called lets playing a bit safer and avoid most of the traps holes. Sure you might have to give up on a video or series at one point but itís something that will have to be done and hopefully make the developer / publisher realise you can just walk away if they donít want to play ball.
Happy Lets playing everyone .