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I see the gaming industry has succeeded in portraying someone making videos about their game as "use of their IP" and something they have a right to control? I

I see the gaming industry has succeeded in portraying someone making videos about their game as "use of their IP" and something they have a right to control? Is making a video about sneakers "use of Nike's IP"? What if they've been dyed to be the same color as a much more expensive limited edition? Is making a video about driving a Corvette through some picturesque mountain roads "use of Chevy's IP"? What if that Corvette has a custom supercharger kit, installed at a fraction of the cost of a factory-supercharged Corvette?

derefr 4y ago
A video about X isn’t the same thing as a video where the majority of the footage is sampled directly from X (where X is a digital good experienced through watching it on a screen) such that it could be construed to be a valid replacement for buying X for some buyers. Example: a 30-second sample of footage from a movie is Fair Use in an educational or journalistic context; while a five-minute long sample is not, no matter the context. (Have you ever thought about why TV shows about movies only use tiny clips of the movie, even if the point would be much better made showing the full scene? It’s because they have no valid Fair Use defence to using clips that long, and so would have to pay for the rights — which they don’t want to do.) Obviously, a YouTube upload of a movie substitutes for buying that movie. Less obviously, but still overwhelmingly proven, a YouTube upload of “the Phantom Cut” substitutes for purchasing The Phantom Menace. And here’s a specific precedent you can look up: RiffTrax were never legally allowed to distribute the (copyrighted) movies they dubbed over with comedic commentary, just because their derivative work was transformative. A work thus combined would still substitute for the original movie. When they did MST3K, that was all public-domain movies; and when they did RiffTrax records, those were like ROM IPS patches, not containing the original IP but instead intended to be combined with it by the end-user (“simultaneous play”.) A LongPlay of a JRPG likely provides all the “game” that many people want when they buy a JRPG. As this is done using the copyrighted assets of the game (dialogue, etc), a LongPlay is legally a substitute for the game. To be clear, that’s not the point here, as sampling is an easier-to-satisfy criterion than direct substitutability is. But substitutability is a useful model for understanding sampling. If a remix or radio edit is a substitute for the original song, then a song that uses 30% of another song as samples, could be said to be 30% a substitute. (This isn’t actually why, but this is a useful intuition that allows you to predict the law.) So you still owe royalties. Now: how is a video of a speed run, or a commentated Let’s Play of a game, different from one song sampling another song, in a way that is in itself different from the way that a LongPlay is a substitutable good for a game, taken through the lens of sampling one work to create a derivative work?

derefr 4y ago

A video about X isn’t the same thing as a video where the majority of the footage is sampled directly from X (where X is a digital good experienced through watching it on a screen) such that it could be construed to be a valid replacement for buying X for some buyers. Example: a 30-second sample of footage from a movie is Fair Use in an educational or journalistic context; while a five-minute long sample is not, no matter the context. (Have you ever thought about why TV shows about movies only use tiny clips of the movie, even if the point would be much better made showing the full scene? It’s because they have no valid Fair Use defence to using clips that long, and so would have to pay for the rights — which they don’t want to do.) Obviously, a YouTube upload of a movie substitutes for buying that movie. Less obviously, but still overwhelmingly proven, a YouTube upload of “the Phantom Cut” substitutes for purchasing The Phantom Menace. And here’s a specific precedent you can look up: RiffTrax were never legally allowed to distribute the (copyrighted) movies they dubbed over with comedic commentary, just because their derivative work was transformative. A work thus combined would still substitute for the original movie. When they did MST3K, that was all public-domain movies; and when they did RiffTrax records, those were like ROM IPS patches, not containing the original IP but instead intended to be combined with it by the end-user (“simultaneous play”.) A LongPlay of a JRPG likely provides all the “game” that many people want when they buy a JRPG. As this is done using the copyrighted assets of the game (dialogue, etc), a LongPlay is legally a substitute for the game. To be clear, that’s not the point here, as sampling is an easier-to-satisfy criterion than direct substitutability is. But substitutability is a useful model for understanding sampling. If a remix or radio edit is a substitute for the original song, then a song that uses 30% of another song as samples, could be said to be 30% a substitute. (This isn’t actually why, but this is a useful intuition that allows you to predict the law.) So you still owe royalties. Now: how is a video of a speed run, or a commentated Let’s Play of a game, different from one song sampling another song, in a way that is in itself different from the way that a LongPlay is a substitutable good for a game, taken through the lens of sampling one work to create a derivative work?