[This article was written by Kostya Lobov and Nic Murfett of Harbottle & Lewis LLP]
The recent uproar over the changes YouTube made to its Content ID system, which resulted in thousands of copyright infringement notices being served on uploaders of gameplay videos and their ad revenue streams being automatically diverted to the companies identified by the system as being the copyright owners, has highlighted an unresolved tension that exists between the legality of uploading consumer generated gameplay videos and the game industry’s use of such gameplay videos as a form of free marketing.
Whilst the strict application of copyright law in this context would in many cases enable studios to insist on such content being removed, studios appear to have adopted a selective enforcement policy, which may not be sustainable in the long-term.
The prevalence of content featuring gameplay footage, whether in the form of ‘Let’s Play’ videos, reviews, guides, walkthroughs or even live streams (“gameplay videos”) is old news to most people who consume that kind of content, but is nevertheless a development that the law is struggling to keep up with.
The Copyright, Designs and Patents Act 1988 (“CDPA”), which governs the UK’s copyright regime, was enacted long before gameplay videos were in existence. It provides that copyright will subsist in any original literary, dramatic, musical or artistic work, sound recording, film, broadcast or typographical arrangement. A game will typically contain a number of these elements.
For example, the game’s artwork, GUI, textures and character models may be protected as artistic works; the text in the game’s menus, loading screens and subtitles may be protected as literary works; any cutscenes in the game may be protected as films or dramatic works; and various parts of the soundtrack may be protected as musical works or sound recordings.
The owner of the copyright in an original work is afforded a number of exclusive rights, such as the exclusive right to make copies of the work or to communicate the work to the public.
Anyone who exercises any of these rights (for example, by uploading a gameplay video online) in relation to the whole or a substantial part of the work risks infringing the copyright owner’s exclusive rights unless (a) they have obtained the copyright owner’s prior consent, or (b) they are able to show that one of the few ‘permitted acts’ defences to copyright infringement applies.
It should be noted that whether or not something forms a ‘substantial part’ of a work is considered subjectively in the context of the copyright infringement test, meaning that even a mathematically small portion of a copyright work could still be a ‘substantial part’ if it is subjectively important or represents the author’s intellectual creation.
Consent can be obtained in a number of ways. Some studios will grant gamers a limited licence to use gameplay footage from their game for commercial purposes as part of their title's EULA. Others meanwhile will consider whether to provide their consent on a case by case basis to gamers who submit a completed ‘permission request form’ to them.
Someone who uploads a gameplay video which includes in the background audio the song they were listening to on their stereo at the time the video was recorded may be able to successfully argue that the inclusion of that song is incidental.
Alternatively, gamers who join a Multi-Channel Network (“MCN”) benefit from the licences that the MCN itself has negotiated and obtained from the relevant copyright owners which enable the MCN’s members to exploit certain gameplay footage commercially.
As each of these approaches to obtaining consent has its own drawbacks, be it the limitations imposed by the licence, the time it takes to obtain the copyright owner’s consent (if indeed they are willing to do so at all) or the sometimes onerous terms of the MCN’s membership agreement, if consent is to be sought, some thought should be given as to the approach that is to be adopted. What works best may well vary from situation to situation.
Defences to Copyright Infringement
In the absence of consent, anyone who uploads a gameplay video would need to rely on one of the ‘permitted acts’ defences set out in the CDPA to demonstrate that their use does not infringe copyright. The most relevant permitted act is likely to be ‘fair dealing’ (similar in its purpose to the ‘fair use’ defence under US law, but much narrower in scope) and the other permitted act to be considered is ‘incidental inclusion’.
Fair dealing broadly speaking permits using certain types of copyright works for the purposes of research and private study, criticism or review, and the reporting of current events (provided that the use is fair in each case). To successfully rely on this defence, it would be up to the uploader of the gameplay video to prove, on the balance of probabilities, that his use falls within these parameters.
Determining whether a use is ‘fair’ can be evidentially tricky as it requires a court to "judge the fairness by the objective standard of whether a fair minded and honest person would have dealt with the copyright work in the manner” utilised by the defendant. Fair dealing is also subject to the person relying on the defence showing that they have given sufficient acknowledgement to the relevant copyright work and its author.
Therefore, whilst it may be possible for a gameplay video that features the review of a game to be protected by fair dealing for the purpose of criticism and review, a ‘Let’s Play’ gameplay video may well struggle to benefit from any of the fair dealing defences.
If the fair dealing defence is not applicable, uploaders of gameplay videos may nevertheless be able to avoid infringing copyright if they have only used the underlying copyrighted works incidentally in their gameplay video.
There is a fine line between what is and is not ‘incidental’ for the purpose of this defence. So, for example, someone who uploads a gameplay video which includes in the background audio of the song they were listening to on their stereo at the time the video was recorded may be able to successfully argue that the inclusion of that song is incidental.
Whilst a number of studios have publicly come out in support of those uploaders who were sent copyright infringement notices by YouTube’s Content ID system, it seems likely that far fewer will have withdrawn from the Content ID system altogether.
However, if the uploader deliberately selected and incorporated a song into the gameplay video so as to enhance it in some way, then they probably would not be able to successfully argue that the inclusion of the song was incidental. Whether the inclusion of a copyright work in a gameplay video is incidental is therefore a matter of degree, which will vary from case to case, but in practice this defence is less likely to be applicable than ‘fair dealing’.
Whilst under English law gameplay videos may often infringe copyright, studios are well aware that they can be an incredibly effective means of marketing.
As a result, studios often turn a blind eye to what may effectively amount to copyright infringement, in the knowledge that allowing a little copyright infringement to take place may actually help them sell more units of their game and that enforcing their rights in a draconian manner may only serve to alienate their consumer base.
The emergence of YouTube’s Content ID system (and similar systems on other platforms) provides an opportune way of avoiding this issue, as such systems enable copyright owners to police copyright infringement on digital platforms such as YouTube without appearing to do so publicly. So whilst a number of studios have publicly come out in support of those uploaders who were sent copyright infringement notices by YouTube’s Content ID system, it seems likely that far fewer will have withdrawn from the Content ID system altogether.
What some studios may not have fully appreciated however is that, by permitting or actively encouraging people to upload gameplay videos which technically infringe their copyright, they may be inadvertently consenting to or inducing the infringement of their copyright in the eyes of the law.
If that is the case, then previous court decisions suggest that it may be more difficult for such studios to enforce their rights if they decide that it is necessary to do so, as it could be argued that by implicitly consenting to their content being incorporated in gameplay videos for a material period of time, the studios have granted an implied licence to uploaders to use the content in that manner.
As gameplay videos grow in popularity and progressively become a mainstream form of online entertainment, the income which content uploaders derive from them will also become more significant. It will be interesting to see how the attitude of studios to copyright enforcement develops in response to this. It may be that turning a blind eye to infringements (which are also a potential source of income through licensing) will become more difficult to justify commercially.
It seems that if studios are to truly benefit from gameplay videos, they will have to strike an increasingly difficult balance between enforcing their rights in order to ensure that they are paid their fair share of the exploitation revenues and allowing some infringements to take place for the purposes of marketing their games.
Image credit: Jonas Bengtsson