Fair Use in Gaming Content – FAQS For Creators

air use is
one of the most important – and most misunderstood – concepts in the area of
copyright law. It is an important concept for anyone who is using content owned
by third parties – which includes anyone who livestreams gaming, creates “let’s
play” videos or otherwise uses gaming assets and branding. Unfortunately, there
is a lot of misinformation on the internet and thus creators are often unclear
about their rights and responsibilities.

With that said, here are answers to some frequently asked questions for creators:

What is Fair Use?

Fair use is an exception to the general principle that unauthorized use of a copyrighted work is copyright infringement. Simply put, if a claim of copyright infringement is brought against a defendant, the “defendant” can try to demonstrate they made a fair use of the allegedly infringed work in order to prevail in the case.

Because fair use is a defense, only a court can say whether a particular use of copyrighted material is a “fair use.” However, experienced attorneys can provide an opinion, based on their evaluation of the use using the four-factor test (see below) and their knowledge of case law.

What are the Four Factors?

Courts look
at four factors when making a fair use determination

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

The application of these four factors is nuanced and often complicated, but in short, the use of a copyrighted work is not likely to be fair use if it is used for the same or a similar purpose for which it was originally intended or in advertising/marketing materials, uses a lot of the original work including its most important parts (what the courts have called “the heart of the work”), and/or is used in a manner that competes with the market for the original work. It is more likely to be fair use if the new use is “transformative” in that it comments on, critiques, or otherwise adds new meaning to the original work in some way, if only a small portion of the original work is used (i.e., only enough for the user to make their point), and if the original work is not being used to advertise or otherwise promote the new work or use. So, if a video talks about, for example, loot box mechanics or the historical treatment of race in gaming by using game clips as examples, commenting on and analyzing those clips, it is probably more likely from a legal perspective to be fair use than straight game footage.

Note, however, that there is no bright line amount of use that constitutes fair use. For example, you can never assume that “if you use less than 5%, that’s fair use” – courts have found using only a line or two of text or music to be infringing. If you are in doubt, you should speak to a lawyer.

Is Crediting Important?

It’s nice, and may be considered best practices or industry custom, but it’s generally not relevant for a legal determination of fair use.

Can’t I Use a Disclaimer?

In short, no. Those disclaimers that you see on YouTube stating “This is a fair use. No copyright infringement intended” are generally not legally relevant. There is a small chance that they could be helpful to you in determining the damages that you owe in the event that you are found to be infringing, however, because they may bear on whether your intent was “innocent” or “willful.”

What if I get a DMCA takedown notice? And if a website
removes my video, do I have any recourse?

The DMCA notice
and takedown process provides copyright owners with a way to request removal of
their copyrighted work from a website or other internet service if they believe
the use infringes their copyright. To benefit from the “safe harbor” from copyright
infringement the DMCA provides ISPs, the website or platform must designate a
registered agent to receive and process DMCA takedown notices.  DMCA notices must include certain specific
information to comply with the law, and the registered agent of the ISP has the
job of reviewing and determining whether to comply with the takedown request.

An ISP, such as a
platform that hosts gaming content, does not have to comply with a DMCA notice
if the notice does not fully comply with the legal requirements for a takedown
notice. However, if an ISP does remove content following receipt of a DMCA
notice, it must also promptly notify the party that posted the video. That
party then can file a counternotice if it believes the content was wrongfully
taken down, for instance if the use of the copyrighted work is likely to be a
fair use.

Whether you’re a platform looking to benefit from the protections of the DMCA safe harbor, or a content creator looking to correct an improper takedown of your video content, you should consult with an attorney to make sure you’re in compliance with the DMCA’s requirements, and are not taking any actions that could potentially subject you to liability down the line.

Will I Be Sued For My Videogame Videos?

This is where we
have good news. Because video game publishers largely view streaming and
game-related media to be helpful to their business (under the theory that
exposing more people to the game will increase sales), publishers rarely bring
copyright infringement lawsuits against gamers. The exceptions where publishers
do bring legal action tend to arise in instances where users create new
installments of games (what lawyers and courts would call “derivative works”)
without authorization, insert other infringing material into games via mods,
create and sell software “cheats,” or do something that is offensive in
addition to being infringing (e.g., adding
explicit or hateful material). In recent years, major players such as Take-Two
Interactive and Epic Games have actively policed these types of infringements
of their copyrighted games.

This means that
it isn’t always necessary to apply the fair use analysis outlined above.
However, those creators who are seeking to make heavy commercial use of game
assets (other than solely streaming/YouTube video revenue) should consult with
an attorney before embarking on their plans to ensure compliance with copyright
law.

One of the
greatest challenges in defending claims of copyright infringement in the gaming
space seems to be the wildcard of the judge’s expertise and understanding of
the emerging fields of gaming and streaming. A key defense strategy will
inevitably involve a careful framing of the discussion, including describing
how the game works, what the purpose of the video is, explaining the meaning of
common terms, and the context and communities in which these activities exist
online.

Moreover, everyone should keep an eye on the risk factors listed below.

What
Red Flags should I be aware of?

While the use of gaming footage in the form of livestreaming and “let’s play” type videos rarely results in a claim, there are a number of uses that creators should be particularly cautious about:

• Licensed music: Any game video that features licensed popular music is more likely to cause an issue with the game creators and/or the owners of the rights in the music being used. Creators are generally fine with exhibiting those videos on YouTube (which has a blanket license with multiple labels), but uses of music in other contexts or on other sites could trigger a DMCA takedown or a copyright infringement claim.
• Choreography: Any videos that use choreography or dance moves tend to pose a higher risk. There has been a spate of recent choreography-related claims alleging that games have made unauthorized use of protected dance moves, in particular against Epic Games for the use of short animations in its game Fortnite. Choreography is probably an overlooked area (versus other areas of copyright risk) and thus it is not a fait accompli that the game publisher will have secured the rights, so a video creator could be pulled into a potential lawsuit. Obviously dance-focused games are highest risk, but other games that include “celebration dances” are also a risk. While many recent choreography-related claims have failed because copyright law does not protect simple routines or common social dances, they are nonetheless costly to defend and could become increasingly risky as the law develops in this area.
• Street Art and Tags:  Videos that include any kind of pre-existing graffiti or tags, or even original designs that closely resemble a pre-existing artwork, are similarly susceptible to a copyright infringement claim. Street artists have become notorious copyright infringement plaintiffs in recent years, and like choreography, game creators may not have cleared the rights to these works. The unauthorized use of graffiti may also raise trademark and right of publicity claims, depending on the context in which the tag is used.  
• Athletes and other Identifiable Real People: Any gaming footage that includes the recognizable likenesses of real people (e.g., sports games) is susceptible to a claim. This is not actually a copyright issue, but rather falls under what lawyers call “right of publicity” (i.e., a person’s exclusive right to make commercial use of their name [or alias], likeness and other identifiable features). User-generated content that inserts a real person into a game via a mod could also trigger a claim of this type, particularly from celebrities who regularly monetize their names and likenesses.