Copyright The copyright nature of "Let's Play" videos remains in question; while the developer or publisher of games typically possess the copyright and granted exclusive distribution rights on the media assets of the game, others cite
fair use claims for these works as their nature is to provide commentary on the video game. An important distinction for Let's Plays to qualify as fair use would be their
transformative nature; the more that the Let's Play creator or
streamer adds as commentary atop the gameplay, the more likely that it would be ruled as fair use. However, copyright law favors the game developer or publisher; if challenged, the Let's Play creator would have to argue in court for a fair use defense, which can be costly to pursue. There have been no known cases of Let's Plays challenged in legal systems, keeping their legal nature in question. Sites that host Let's Plays have sometimes sent a
Digital Millennium Copyright Act (DMCA)
takedown notice to streamers, at the behest of the copyright holders of the video game. However, in practice, game companies "tacitly permit YouTubers to violate their copyrights, with creators and publishers turning a blind eye out of consideration of the promotional value of being featured on high-audience channels". Sites that host user-created Let's Plays tend to favor the copyright holders to maintain their
safe harbor status as
part of their liability protection within the
Digital Millennium Copyright Act (DMCA); for example, YouTube uses both manual and automated systems to detect copyright infringement and issues
copyright strikes to offending channels. (pictured in 2018) was among several Let's Play YouTubers initially affected by Nintendo's Content ID policy. In May 2013, Nintendo registered Let's Play content of their games through YouTube's
Content ID system such that they could generate ad revenue from user videos; several Nintendo based Let's Play personalities such as Chuggaaconroy, and ZackScottGames were initially affected by Nintendo's Content ID policy during this time. Nintendo would eventually cease such claims, and later created its own affiliate program, the Nintendo Creators program, between themselves, Google, and proactive uploaders to split profits. Smaller developers have been more open to allowing Let's Play videos.
Ubisoft has stated that it allows its games to be used in Let's Play videos and allows for those making them to monetize from any ad revenue as long they stay within certain content-appropriateness guidelines.
Microsoft Studios similarly created a set of Game Content Usage Rules that sets certain requirements and limitations on those using its software for Let's Play videos. In early December 2013, a change in YouTube's
Content ID policy caused many existing Let's Play and other video-game related material to be blocked. In response, many developers and publishers issued statements and worked with YouTube to assure such videos were not meant to be blocked, helping those whose videos were affected, and encouraging users to continue to show these; these companies included
Blizzard,
Ubisoft,
Capcom,
Paradox Interactive, and
Valve. YouTube later clarified that the change in the ContentID system that caused videos to be flagged was likely a result of new tools it made available for multi-channel networks, which can cover separate video and audio copyrights. At least two known music multi-channel networks, TuneCore and INDmusic, who represent many video game music composers and artists, had automatically enabled the copyright protection for all of its clients without seeking their input, and as such, many of the Let's Play videos as well as the game developers' own promotional videos were blocked due to these actions. YouTube states they do not plan to change this system despite complaints from the original music composers. The streaming website Twitch implemented a similar copyright control approach that would mute recorded streams for up to half-hour blocks if copyrighted music was discovered in August 2014, which was found to have the same problems with blocking Let's Plays that used original game music. This prompted Twitch to alter the method to reduce false positive and provide ways for users to challenge such claims. Some games which have used licensed music, such as
Concrete Jungle and
Quantum Break, have provided a game option that disables licensed music playback or replaces this music with copyright-free music, making the games "stream-safe" to avoid being tagged as copyright infringing. In other cases, music licenses sites now consider the impact of Let's Plays on the video game marketing cycle, and offer broader licensing options for their music that includes their legal use in Let's Play for that game, and assurances that any Let's Plays tagged with ContentID violations would be remedied. Even though these can be resolved, the time it takes to clear the ContentID claim can be costly to Let's Play broadcasters as they lose advertising revenue on the video while it is offline, as well as losing impact for the developer and publisher of the game. Pinokl Games and
tinyBuild, the developers and publishers, respectively, of
Party Hard, had found Let's Plays of their game hit frequently with ContentID claims that were resolved by the music licensing service; they opted to craft a new YouTube-friendly soundtrack for this purpose to avoid these. In 2022, the video game ''
Cookie's Bustle'' had a resurgence after persistent use of the
Digital Millennium Copyright Act to remove traces of the game's existence off of the internet. According to the International Online Copyright Office (Interoco) a specific copyright for the "Cookie's Bustle Gameplay Concept" was filed on January 23, 2022. In May 2023, a Japanese YouTuber was arrested by Miyagi Prefectural Police for uploading gameplay videos of the visual novel ''
Steins;Gate: My Darling's Embrace, as well as summary videos for the Spy × Family and Steins;Gate'' anime shows. According to
Content Overseas Distribution Association (CODA), the issue in relation to gameplay was both because official guidelines restrict gameplay videos of the game to about one hour (including the ending) and because the videos were monetized; violating Japanese law of making money from copyrighted content.
Promotion and disclosure Another legal issue related to Let's Play is disclosure. More popular YouTube channels will sometimes receive free promotional copies of games from developers and publishers in advance of release to promote the title. According to the US
Federal Trade Commission, players that review or create commentary for such games should disclose the game if they subsequently make money from the review to stay within ethical business practices. In one specific scenario,
John Bain, who has previously argued for clear disclosure of paid reviews, has revealed that he and several others were approached by Plaid Social, a marketing outlet for
Warner Bros. Entertainment and offered promotional copies of the upcoming
Middle-earth: Shadow of Mordor in exchange for meeting very specific tasks in their presentation. Bain refused on these terms, but other commentators had taken the deal without disclosure of the deal, raising the issue of how many of these works were made through paid reviews. If an advertiser or marketer is offering to someone to write a favorable review, should be disclosed somewhere that is quite visible. According to Mary Engle, associate director for Advertising Practices at the
Federal Trade Commission (FTC), "disclosure should basically be unavoidable by the viewer. Perhaps the most important line to note. If a viewer doesn't automatically see or hear the disclosure without having to go hunting for it, it's not legal disclosure". In the aforementioned situation with Plaid Social and Warner Bros., the FTC issued a fine against the two companies, which with Warner Bros. settled in July 2016 and agreed to new regulations that would fine them in the future should such sponsored videos not be disclosed. A similar situation arose as a result of the
skin gambling issues raised in mid-2016, with the FTC further refining its guidelines related to promotional advertising on social media in September 2017.
Other issues In some cases, developers or publishers have used the DMCA to take down Let's Plays and other videos that are highly critical of a game, using the copyright provisions in the DMCA to override free speech or
fair use aspects allowed for by the law. A noted case is that of
Digital Homicide Studios against game critic
James Stephanie Sterling. Sterling had posted a let's play of Digital Homicide's
The Slaughtering Grounds (2014) that noted numerous flaws in the game and called it as a potentially the worst game of 2014. Digital Homicide used a DMCA request to remove Sterling's video; Sterling was able file a counterclaim to restore the video. The action led to Digital Homicide's James Romine filing a $15 million
defamation lawsuit against Sterling and 100
Steam users that left negative reviews of the game. The cases were ultimately dismissed or withdrawn. DMCA claims have also been threatened or used to remove Let's Plays of games owned by a company who do not agree with ideals or morals of the person creating the video. In September 2017, Kjellberg blurted out a racist insult while live-streaming a game to viewers, later apologizing for this; this followed previous incidents of where Kjellberg's on-screen behavior had been criticized.
Campo Santo's founder Sean Vanaman was dismayed by this, and issued a DMCA notice to takedown Kjellberg's Let's Play of their game
Firewatch, stating that having their game shown on his YouTube channel was the equivalent of endorsing his ideologies; YouTube complied with this request a few days later. Vanaman later clarified that his goal was not to censor Kjellberg, but that there is a "bad fit" between Kjellberg's views and Campo Santo's views and would prefer that Kjellberg not cover his games. Lawyers and legal experts speaking to
Kotaku,
The Verge and
PC Gamer believed that content owners like Campo Santo have full control to issue DMCA takedowns under the law, but whether these takedowns are valid under fair use defense within copyright law is unclear, since to this point there has been no case law to challenge the legality of Let's Plays and other video game video walkthroughs or challenges to DMCA takedowns for this type of content. Kjellberg did not plan to counter the DMCA claim but pointed out that the use of DMCA to take down videos due to issues other than related to copyright has a potential for abuse by game developers and publishers and affect the current balance of the value of Let's Plays in game promotion and marketing.
Trademark Sony Computer Entertainment of America attempted to
trademark the term "Let's Play" as applied to streaming and broadcasting of video games in the latter part of 2015, but the request was preliminarily denied by the
United States Patent and Trademark Office citing an existing trademark. The MacArthur Law Firm, a firm specializing in video game legal matters, filed a formal petition to the Patent and Trademark office, citing that the denial should have been based on the claim that "Let's Play" has become a
generic trademark and any further attempts to trademark the term should be denied. The Patent and Trademark office agreed, stating that the term "Let's Play" is now too generic to be trademarked. == See also ==