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

45 Pages Posted: 18 Dec 2013

See all articles by Sebastian Mejia

Sebastian Mejia

Florida A&M University - College of Law

Date Written: December 16, 2013

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.

Keywords: Copyright, Fair Use, DMCA, Videogames, Let's Play, Livestream, YouTube, Twitch.tv, Public Performance, Display Rights, Reproduction Rights, Distribution Rights, Copyright Infringement, Derivative Works

JEL Classification: K10, K19, K30, K39

Suggested Citation

Mejia, Sebastian, Fair Play: Copyright Issues and Fair Use in YouTube 'Let's Plays' and Videogame Livestreams (December 16, 2013). Available at SSRN: https://ssrn.com/abstract=2368615 or http://dx.doi.org/10.2139/ssrn.2368615

Sebastian Mejia (Contact Author)

Florida A&M University - College of Law ( email )

201 Beggs Avenue
Orlando, FL 32801
United States

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