Nintendo has joined the fray of many other
companies in going after YouTubers who are posting Let’s Plays and perceivably
any other Nintendo related walkthrough content. The last company to do as much
was Sega, however there is a major difference between what Nintendo is doing
and what most other companies have done. Speaking from previous experience,
we’ve had Viacom come after our YouTube account for posting trailers – trailers
which we had all the rights to post (they were literally sent to us to use by
the company who made them). Our trailers would get taken offline and YouTube
would then notify us. We generally got all the trailers back online by filing
an appeal and presenting tangible proof we can post it (Viacom doesn’t
“own” trailers, but they do own GameTrailers.com… so sure anything
that has the GT logo they “own”… but not the individual trailer
itself). 

Nintendo
is not seeking to remove or take down any of the videos presently on YouTube,
nor any that may be released. Rather, they are taking ownership of the
advertising income for ads that display before and at the end of the videos,
and/or they are adding ads in to those videos that as-of-yet don’t have ads.
Obviously, some LPers aren’t happy, because they don’t feel its right for
Nintendo to take away that income. 

Why YouTubers Feel They Have a Right to Ad Income

Zack Scott, who is the LPer in question that brought this all to
light via reddit, had this to say on his Facebook about the whole situation:

I just want to express my feelings on the matter of Nintendo
claiming not just my YouTube videos, but from several LPers as well.

I’m a Nintendo fan. I waited in the cold overnight to get a Wii. I’m a 3DS
ambassador. I got a Wii U at midnight when I already had one in the mail. I’ve
been a Nintendo fan since the NES, and I’ve owned all of their systems.

With that said, I think filing claims against LPers is backwards. Video games
aren’t like movies or TV. Each play-through is a unique audiovisual experience.
When I see a film that someone else is also watching, I don’t need to see it
again. When I see a game that someone else is playing, I want to play that game
for myself! Sure, there may be some people who watch games rather than play
them, but are those people even gamers?

My viewers watch my gameplay videos for three main reasons:

1. To hear my commentary/review.
2. To learn about the game and how to play certain parts.
3. To see how I handle and react to certain parts of the game.

Since I started my gaming channel, I’ve played a lot of games. I love Nintendo,
so I’ve included their games in my line-up. But until their claims are
straightened out, I won’t be playing their games. I won’t because it jeopardizes
my channel’s copyright standing and the livelihood of all LPers.

Fair enough. YouTubers do choose their LP’s based upon the
commentary and personality of the person playing the game. Why shouldn’t he
then get ad revenue that generates?

YouTube Clearly States YouTubers Don’t Have Ownership

Without the appropriate license
from the publisher, use of video game or software user interface must be
minimal. Video game content may be monetized if the associated step-by-step
commentary is strictly tied to the live action being shown and provides
instructional or educational value.

Videos
simply showing a user playing a videogame or the use of software for extended
periods of time may not be accepted for monetization.

The above quote comes directly from YouTube’s user agreement
under the monetization section. It seems pretty clear that, by simply using
youtube, you are accepting that in making any sort of Let’s Plays or
Walkthrough content you’re not legally supposed to make an income off those
videos, thus any revenue generated is actually supposed to go to the copyright
owners of the game. You can talk around this policy all you want, but as
someone who uses YouTube… you already accepted this agreement. If you don’t
like it, don’t put your LP’s on YouTube. There are other services out there
that won’t take away your revenue like that – they just won’t allow you to make
any money at all.

While one could sympathize with the LP folks, they are actually
blatantly going against YouTube’s own policy by making ad revenue off there
videos. Thus, no one should actually be upset when a company such as Nintendo
starts making YouTube enforce their own rules. You’re lucky YouTube didn’t jack
the revenue themselves a long time ago.

Is Nintendo Morally Justified?

It is well within Nintendo’s legal rights to take the ad revenue
away from LPers and to themselves based upon YouTube’s above policy. That
policy essentially gets rid of any semantics on the issue of “who owns
that content”. Thus, you can’t realistically get upset at Nintendo for
making YouTube enforce its own policy – it was bound to get enforced eventually
(a lot of rules have changed since Google took over, so enforcing all the
policies has been a slow process).

However, the questions still remains on if Nintendo should be
bothering with this at a morality level. According to Destructoid Nintendo has
only gone after Super Mario 3D Land, New Super Mario Bros. U, New Super Mario
Bros. 2
, and Mario Kart 7.  All more recent games that are still
generating sales. You could argue LP’s help increase sales, not hurt them.
Nintendo sent the following the response on the topic to GameFront:

As part of our on-going push to
ensure Nintendo content is shared across social media channels in an
appropriate and safe way, we became a YouTube partner and as such in February
2013 we registered our copyright content in the YouTube database. For most fan
videos this will not result in any changes, however, for those videos featuring
Nintendo-owned content, such as images or audio of a certain length, adverts
will now appear at the beginning, next to or at the end of the clips. We
continually want our fans to enjoy sharing Nintendo content on YouTube, and
that is why, unlike other entertainment companies, we have chosen not to block people
using our intellectual property.

For
more information please visit http://www.youtube.com/yt/copyright/faq.html

Nintendo did become a YouTube partner, as is evidenced by
the fact Nintendo can now stream Nintendo Directs on YouTube. However, by
becoming a partner… Nintendo clearly is going to protect their IP has much as
they can. The above statement clearly points that they aren’t going to take
down your videos… nor put ads on videos that are only short clips showing fun
things going on. They will, however, throw ads on and take away ad revenue
from the longer walkthrough style videos. In the end… I a bit torn on the
subject.

On one hand, LPers have been doing this for many years. They
built up followings, spend a lot of time not only playing the games, but
editing the videos and adding in commentary.  Some might even be partially
reliable on the income generated to help support themselves or their hobby. On
the other hand, LPers are blatantly breaking YouTubes own copyright/user
agreement where it is spelled out in plain English that you can’t be making
these videos, and if you do, they are subject for removal or other such
penalties. Nintendo is well within their rights to go after your channel for
copyright, get you three strikes, and your channel vanishes forever (this has
happened in the past).

However, they are just doing a content ID match, which allows
them to monetize those videos instead. While it can be argued the money made
from these videos is small and insignificant (let’s say for a full let’s play
of a game… you maybe make a few hundred dollars) – but if you start adding up
hundreds of Let’s Plays (maybe even thousands) you are now looking at hundreds
of thousands of dollars Nintendo is putting in their pocket.

Where I Stand

In the end, I am going to stand with Nintendo on this one… sorry
LPers. YouTube clearly states that if you make these videos you do not own that
copyright. Nintendo is being nice about that policy and not taking out your
account, but rather monetizing off of it. Heck, you should almost be thankful
that Nintendo is being so nice. Regardless of what you might want to say about
your commentary being the reason for popularity, the fact remains the games
themselves have a lot to do with it as well. Zack Scott, as an example, only
has to look at his LP of Mini’s on the Move (a few thousand views each)
compared to Luigi’s Mansion: Dark Moon (300k+). The fact remains that without
that stellar content, you won’t be garnering the views. 

When it comes to content that Nintendo is still actively selling
on a large scale, it is morally correct for them to want to control that
content. That is why I am saying that you should be thanking Nintendo for not
taking down your channel, because it is their right to do so. Just like
Nintendo can no longer advertise on Zelda Informer in the United States anymore
due to their new policies with game site names. I can be upset about it as it
takes ad revenue away from us, but they could have taken us down if they really
wanted. Instead, they still send us review copies of Zelda games and are in constant
contact with us. They aren’t stopping me from doing and enjoying my hobby.
Let’s Players would do good to recognize the YouTube policy and realize they
are creating these videos at their own risk – and they can safely know that if
they do Nintendo only videos their channel will not be removed, since Nintendo
is not seeking such punishment.

I sympathize with all of you that spent years doing this, but
there is no real point getting upset about it, especially when it happens on
YouTube. It’s not like YouTube doesn’t have a policy telling you this already
or anything.

No
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Our Verdict

Nathanial Rumphol-Janc
I am the current Editor-in-Chief of Zelda Informer and have been running the show here since July 16th, 2008. I've actually been running Zelda Fan sites since 1998, so I've been in this "industry" for roughly 16 years. I'm 28 years old and have two kids, one biological, the other more of a step daughter (not legally yet, but practically). I live with my girlfriend and our two kids (Aiden, age 1 and half, Melody age 3 and half). I'm attending college to create video games web applications, and I naturally love Nintendo (I run a Zeld a website after all!). For those curious, I currently own a Wii U, Xbox One, 3DS, PlayStation 3, and a gaming PC (and a gaming capable laptop too!). I do plan to eventually get a PlayStation 4, likely when more comes out I am interested in playing on the system. I do play the Wii U more than any other system I own.

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