Wednesday, August 7, 2013

Wants to Make Money From "Let's Play" Videos

Dear Rich: Many YouTube accounts are posting what is known as "Let's Plays." Through use of a screen capturing program, the video's creator records a segment of gameplay and during game play talks about the section, sometimes as a guide, sometimes as a form of critique. There is a partners program with YouTube that allows the user to make money off of his or her videos. I've been wanting to do this for some time with games from multiple publishers and developers. If this video is a review, can I still make money from it? The Terms of Use for one of the programs states the game content can only be used "in a non-commercial context for private, personal use only." However, am I correct in the assumption that fair use supersedes this? No, fair use does not trump a "terms of use" agreement. Assuming you entered into the agreement properly -- that is with a Click to Accept or I Agree styled statement -- the agreement would likely control the outcome of a dispute. A fair use defense would be irrelevant. The only exception might be (and many courts don't agree) if the material used is in the public domain. (Also, we're not positive about your use of the term "supersede.")
If there is no license agreement. If there is "no terms of use" agreement, will a fair use defense excuse the posting of a Let's Play video? Probably not. Although we appreciate your lengthy explanation as to why you would qualify for fair use (sorry, we had to edit your question), you may not be aware of two things. First, fair use is a defense (not an offensive move). In other words, a court will only consider fair use after the court has determined that infringement has occurred. Second, only a court can confirm that your defense is valid ... and most likely you can't afford that. So, if a company goes after you for infringement and you yell, "FAIR USE," the company can disregard your claims and force you into court anyway. Which is why for most people, claiming fair use is a losing proposition.
So what about the zillions of posted Let's Play videos? As with many other postings online, people get away with video postings that violate the law because the copyright owner is unaware, or chooses not to pursue the matter. As for pursuing revenue as a YouTube Partner, that's your call and will likely violate the YouTube Partners policy (see Section 6 F).