Nintendo doesn’t get fair use

In the YouTube community there’s a bit of a kerfuffle over the fact that Nintendo has been doing two things. First, they’ve been taking down Let’s Play videos because of copy right infringement. The second is they’ve been putting ads on those videos they aren’t taking down. I don’t believe that either of these should be allowed. As always, I’m not a lawyer – keep that in mind.

Let’s Play videos are essentially play through of a particular game. Nintendo is claiming that they own the copyright to video because they created the content that is in the game, including the text, music, artwork, and characters. This is of course completely true. However, they don’t own everything in the video. The person doing the let’s play makes choices so, while the overall story arc is in fact the same, the manner in which the game is completed is unique and can happen in very different order. Which means if Nintendo owns the copyright of the way you play it, then it owns every possible way the game could ever be played. I could see that there’s some logic to that argument, however, it’s impossible to predict how the game will play out any given time and it also means that Nintendo also owns every time the player fails to beat the game and gives up.

If this was the only thing in the video, I’d say Nintendo has a decent argument, but even then it’s something of a remix, because things are being changed, events happen randomly that aren’t under Nintendo’s control, they set the parameters for something to happen, but they couldn’t predict a priori when something was going to happen or what items would be dropped at any given time – which makes the game different each time.

Furthermore, many of these videos have voice overs by the players. In many cases the players are talking about things completely unrelated to the actual game which Nintendo cannot claim as their own copyright. In many cases it is actually the YouTuber that is driving viewership to the video and not the game alone. Of course if you don’t like Pokemon you’re not going to sit and watch a 45 minute play through of Pokemon even if you find the person hilarious (or you might). It’s the personalities that make these videos valuable as much as the Nintendo game material.

I also think that Nintendo needs to put this in perspective of other mediums that people do a similar type activity. Think of someone analyzing a film, a book, or TV Show – in all of these cases there are direct quotes, clips of the video or whatever with pausing and zooming and highlighting and whatever. In addition there is custom material that the specific critic ads to the video which makes it something new. This constitutes Fair Use. These reviews make the film more valuable because it draws viewers to the movie, the is the same for video games.

Nintendo doesn’t understand this and it’s likely to be contested, eventually Nintendo will lose this and will have lost a lot of good will from the gaming community. This will end poorly for Nintendo.

Amazing artistic abilities unleashed through remixing

Most people have seen Macklemore’s Thrift Shop video and if not, they’ve heard the song. Roughly speaking the song is about a guy who decides to do all his shopping at thrift shops because he finds it’s better pricing for clothes that look as good or better than the clothes that are popular today and cost $50 for a T-Shirt.

The song was then covered by a band that specializes in big band styles music, which by itself is a pretty cool song. This was then remixed by some French DJs mixed with two different movies and turned into this awesome video, which I found on reddit once it got pretty popular on /r/videos.

 Through this evolution of Thrift Shop, it’s pretty obvious something new is being made each time. In the “Granpa’s Style” version the electropop sounds are replaced with a standup bass, a keyboard, and a jazz drummer plus a fantastic female vocalist. The video is simply a recording of them performing the song. In the final version of the video, it’s so far disconnected from the original video that if you heard it alone, you could be excused for not realizing it was based upon Macklemore’s Thrift Shop.

Not only is it bringing a new and interesting life to Macklemore’s music, it’s reviving two forgotten films that show off some pretty amazing dancing mixed with modern day video remixing that just adds a lot to the song. I think that the song along would be a lot less without the video.

Remixing are a good thing. We all remix things even if we really aren’t aware of it. When you talk about a song or movie in a quote along while watching someone streaming a video game or sports game, you’ve remixed that experience. You’ve created something new. The context of the game you’re watching triggered a memory that you associate with that movie, tv show, or song. Internet memes are all remixes and these highlight the need for more things to be entered into the public domain. No one wants the owners of “Grumpy Cat” to go around suing anyone that makes a meme using their cat. They’ve registered a trademark for Grumpy Cat, so it really could happen.