Fair Play: Copyright Issues and Fair Use in YouTube 'Let's Plays' and Videogame Livestreams

Abstract

The videogame industry has reached a point in the popular consensus where it is no longer a niche, enthusiast market. The majority of Americans play videogames in one form or another (console gaming, PC gaming, or social games on sites like Facebook). With technology moving at a rapid pace, innovations that were never contemplated even ten years ago are becoming widely adopted. YouTube is one of these innovations; it allows any person with internet access to gain notoriety. In the videogame industry, this has led to the advent of the Let's Play and livestream producer. These individuals are essentially professional fans who derive an income from recording themselves playing videogames alongside colorful commentary. In some cases, these individuals have billions of views on YouTube and command a vast audience. However, there is concern that they are unlawfully appropriating the work of others (namely the videogame designers and publishers) in order to sustain their content channels. This paper addresses the issues of copyright infringement and fair use in Let's Plays and videogame livestreams. Part I analyzes these video series in light of the exclusive rights of reproduction, display, public performance, and distribution. Part II will look at the statutory right of creating derivative works and whether Let's Play videos and livestreams are, in fact, derivative works of the games they show. Part III will focus on an in depth analysis of the doctrine of fair use and answer the question of whether Let's Plays and livestreams should fall within its protection. Finally, Part IV will provide recommendations to allow for a more flexible fair use standard that protects not only the copyright holders' interests, but also those of the Let's Play and livestream producer.