"What does it mean to have the 'right' to control?"
If I had to place recorded game footage anywhere, I would place it under "derivative work," but it's a fine line. When you upload game footage onto YouTube, you are distributing footage of the game, and you are arguably publicly performing the game. But in my view, because of your input, it is a derivative work. A derivative work is defined
as "a work that is based on (or derived from) one or more already existing works." In traditional media, fan fiction, sequels and remixes are considered "derivative works." In a game context specifically, machinima is a derivative work. Those are clearly works that are based on other existing works. So why would video of someone playing a game fall in this category?
Well, simply put, there is an additional element added to the original work: the player's input. If I put a video of a cutscene or of a title screen or of the game with on one at the controls on YouTube, it would just be the game (which is still infringement, as we'll get to in a minute), but when I'm adding my input, I'm adding an element. The way one player chooses to progress or even behave with respect to manipulating the controller is not the same as another.
Even if you don't agree with me on the derivative nature, it would still be a public performance or display of the game in question (depending on your interpretation of the concept of "performance"). With respect to a cutscene, it would likely be a public display. And all of these are rights that are within the control of a copyright holder, which would be the game company. But what does it actually mean to have the "right" to "control" these things? Put simply, you are not legally allowed to proceed without permission from the copyright holder.
"Just because the right holder isn't taking action doesn't mean it's legal."
That means that if a developer puts out a gameplay video, they have the right to do so without question. If a player puts out a gameplay video, the developers can request the video be taken down from sites like YouTube because they own the copyright. On the other hand, if you were to get permission to post a gameplay video you made, then the video could be posted. To take this a step further, when developers put up a gameplay video or trailer, they also own the rights to that video, and so if they wish, they can prevent others from distributing it, per Rights 1 and 2.
Of course, this all speaks to what copyright owners can do, not necessarily what they will do or should do. Many copyright owners pursue unauthorized videos because it is seen as protecting their copyright, not because they had a problem with the video. Others just don't want videos out in public that they didn't create. Still others may not monitor the issue at all. But just because the right holder isn't taking action doesn't mean it's legal.
In general, game videos make more people aware of and interested in games, and I think most developers know that. When we discuss machinima, we will get into the developers who already have created policies regarding posting videos online, like Microsoft
. Eventually, many more developers may also have a standard policy with regard to posting videos of their games online. Until then, though, this little bit of copyright may provide better insight into why sites like YouTube enforce policies the way they do.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
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