Kind reader, please forgive the lateness of this post, for it is Halloween in Tyria and your hosts were busy fighting glow-in-the-dark skeletons until the wee hours.
This week, something very important caught my eye and I felt it significant enough to commandeer this issue and focus exclusively on it. Instead of our normal issue of Eye-Catching, I’d like to take a moment of your time to talk about Copyright and gameplay videos.
Roll your eyes all you want, this is important. Let me preface this by sharing a bit of history.
I am a writer
When I first went online, it was the heyday of Harry Potter fandom and I stumbled across fanfiction, fanart, and fanpoetry. I’ve been writing fiction since I was a child, and being a Harry Potter fan, I joined in the fun. Of my fellow fanworks creators, I thought, “Here are people who love the characters, the settings, and the lore, SO MUCH that they strive to recreate it in their own work. Here are people who not only buy the books and read them, they live them!” From an artist’s perspective, fans this dedicated to something are priceless. They’re how an artist pays the bills. But I faced a quandary. Harry Potter and all the characters, settings, and lore, are copyrighted. Creating Harry Potter fanworks put me in an interesting position, in that the characters I was writing about were not my characters. (Don’t worry, my original characters forgave me.) I asked myself, “How does copyright work with fanworks?” Faced with such a question, I did what any nerd would do, I started researching copyright law, creating an interpretation and opinion of it and how it works in the modern world.
Non-Legal opinion on Copyright
Copyright law exists so that an artist, the original creator of something, will get paid, among other things. When you create something, you own the right to it, you don’t even have to officially register what you’ve created (but doing so makes it easier to sue for copyright protection); it’s yours the minute you write it down — whether words or picture, or musical notes. As the original creator, you decide what you do with those rights. (I can only speak of publishing rights but it’s my impression that music rights are trickier in the extreme and I know nothing of image rights and how they’re distributed.)
For a long time, there were very limited choices regarding what an original creator could do with their rights. I know, I’ve been studying the publishing industry since the late 1980s. You could sell certain rights to publishers and producers…or you could not. And there weren’t many other options. If you wanted your creation to be out and about in the world, it had to go through those gatekeepers. Oh, sure, you could bribe one of them and “self-publish” but it was expensive. You could also distribute your creative work for free. It was still your work, you owned all your rights, but you also weren’t earning anything from your efforts.
Then the Internet Happened
But, here’s the thing: Times have changed. Suddenly the old models have stopped working. Anyone with a website can show their creations to the world and anyone with a storefront can sell those creations. Copyright still exists of course; the original artist still has the right to be paid for what they’ve created. The only person left out is the publisher, distributor, and producer. After YEARS of doing things the old way, I sympathize with their pain, I really do. To make matters “worse,” strange new copyrights have appeared over time: “Copyleft” and “Open Source” and even…”Creative Commons.”
It turns out there are a lot of people out there who create for the fun of creating (or, like me, fall into a deep depression if they go too long without being creative). Instead of being paid royalties and advances, they accept donations, have a day job, and/or create in their spare time for the joy of meeting new people, making the world a better place, or simply to annoy their significant other. Ok, there are people who create in the hopes of building a big enough fanbase so that they can quit their day jobs. 🙂
Fanworks and Copyright – an artist’s opinion
With all that knowledge under my belt, I returned to the ponderings of my original fiction and the existence of fanwork and concluded (after MONTHS of pondering, I might add) that I would be over the moon with joy if anyone ever loved one of my original characters enough to draw a picture of him/her/it. I would be “scandalized” if they all started having gay sex in a fanfic, but I’d get over it, knowing that someone cared enough about what I had created to create something too. With qualifiers, the only thing I wouldn’t tolerate was if they made money off my creation. My creations are copyrighted, even if I’m willing to distribute them for free and let others create derivative works (a version of the Creative Commons License).
But wait, what does this have to do with video games? This is a gaming blog. Ah, see, I’ve lulled you into complacency just in time to pull out my soapbox and start ranting about YouTube and gameplay videos.
Recently, Total Biscuit pulled out his own soapbox. If you do not know Total Biscuit, please follow this link to his YouTube page. One of his videos was recently hit with a copyright strike and taken down (It was later unblocked). Although he explains it better in his video, the bottom line is that NONE of Total Biscuit’s videos infringe on any sort of video game copyright. His work falls under the fair use clause of the copyright act as he creates reviews and commentary.
Unlike Total Biscuit’s work, the majority of gameplay videos on Youtube are let’s plays or a variety of such. Regardless of what people say, I don’t see them, in and of themselves, falling under the fair use clause. I see them as an intriguing form of fanwork, admittedly a grayer area.
Wait, before you freak out…
The gameplay fanwork videos that dominate YouTube aren’t quite the same as other fanworks simply because a video game needs a player playing it. The code that built the game is copyrighted, the character design is copyrighted, the world is copyrighted, the soundtrack is copyrighted, and one could argue the plots are copyrighted. But, the fact that I fall off cliffs on a regular basis…that’s not copyrighted. The builds that dedicated players create and publicize for the good of the gaming community are not copyrighted to the video game creator, publisher, or distributor.
As an extreme example, who at ArenaNet owns the original copyright on death leveling or perma-pre characters? It is my understanding that the community of Guild Wars players created/discovered these things.
The point is that gamers are just as important to a video game as the company who created the game. Perhaps more so, since dedicated players, the ones who enjoy a game enough to spend extra hours editing and creating YouTube videos of that gameplay, are the ones who will spend real money in a micro-transaction store, will convince their friends to also buy the game, and will buy the merchandise paraphernalia related to the game.
Not surprisingly, a large number of people who post gameplay videos on YouTube have had their videos taken down because of copyright strikes or Third Party Content notices. Others have had their ad revenue “pirated” by game publishers. And, given the history of copyright, it makes sense to these companies to do this. Because fanworks are a gray area, especially when the old guard do not embrace the newer versions of copyright, it’s understandable that these things befall fans who create derivative works.
Fans, Fanworks, and New-Fangled Copyrights
Sadly, I too have suffered. But my suffering brought to light an interesting extra point in all of this. Fans aren’t the only ones who need to understand all possible forms of copyright, artists must understand them as well. My YouTube videos are, for the most part, fanpoetry. Because I’m writing poetry based on a video game, it makes sense to use gameplay video to present the poems. When I started my video creation experiments, I noticed that there was either a lot of dead air or that the game sounds were extremely distracting when it came to reading the poem. So I started looking into royalty free ambient music. And it is out there, licensed under a variety of Creative Commons licenses, free to use with conditions and restrictions. All the music in my videos is CC licensed. I won’t even listen to a piece that isn’t. So, how then, did I end up with a Third Party Content Notice? Well, it turned out, the artist of a piece of music had licensed it through Creative Commons AND sold the rights to a music publisher.
No, I really want to know
How can the exact same piece of music be free to use (with CC restrictions) and at the same time be available only for purchase? Surely, there must be a difference in the end product in order for that to happen? For example, the paperback reprint rights of a novel are often a separate thing from the first printing hardback rights. I can see how the full piece of music, say, five minutes long, would be available for purchase and a sample would be licensed under CC. Or, if I were making money by using the music then I would have to buy a license in order to use the music. But of course, I’m not making money on my fanwork poems, my YouTube channel is not monetized. It would be hypocritical of me to make money on my fanworks if I don’t want anyone making money off fanworks created from my original work.
This experience has convinced me that not only do publishers, producers, and distributors need to learn about the newer forms of copyright, so do artists. If your entire song is CC licensed — no commercial use, attribution – and you subsequently sell the song publication rights to someone, then the CC license should be nullified and your song taken down from any sites that distribute only CC licensed, royalty free songs. And, if it is the case in music that you can have the exact same song in the exact same format licensed in two different ways, more education of the public ought to be done.
Of course, I took the video down, I happily live in the gray area of fanwork and understand why the old business models are so adamant about policing what they see as their property. It’s how they pay their bills, after all, entering the final years of their lives. If anyone’s concerned about which video was taken down, it wasn’t even a published video. It was an unlisted, proof-of-concept video I was showing to my beta reader. 😀
But back to Total Biscuit
There’s one final point to make in this “novel” and it returns to Total Biscuit’s original video. One of his complaints, and a valid one, I think, was YouTube’s heavy-handed, but automated, copyright policing. He had no real recourse to his video being taken down, other than public shaming. I too, had little recourse. There was no “contact us” link in the maze of “self-help” pages YouTube presented in conjunction with my Third Party Content Notice. No way I could easily explain to them that the song was CC licensed and exclusively licensed at the same time. The little radial button choices presented if I wanted to dispute the copyright claim were laughable. The majority of them either began with a warning that I should consult a lawyer or told me outright that my understanding of copyright was wrong. Because as a writer of original fiction who has actually studied copyright law, I apparently don’t know as much as the condescending editor of a YouTube page. And just so you know, no amount of yelling at my computer screen would convince this non-human entity otherwise.
If YouTube wants to police copyright in such a heavy-handed manner, there needs to be upfront and easily accessible human oversight and an appeals process. Preferably devoid of warnings to get a lawyer.
I feel strongly about these issues, as a creator of original work, a creator of fanworks, a consumer, and a gamer. If you do as well, you may want to check out the Electronic Frontier Foundation (EFF), which works on a variety of gray area issues that have come about as our world has gone digital.
And now, back to my Ode. ~ Star
* Copyleft Defined |gnu.org
* Open Source | opensource.org
* Creative Commons Licenses | creativecommons.org
* Definition of Let’s Play | lpcritic
* Electronic Frontier Foundation – Work | Electronic Frontier Foundation