The Atlanta Lawyer August/September 2015 | Page 11

Tech Talk

Let’s Play Videos and
Copyright Law
By Michael Stoyer, and
Wendy A. Choi, Ballard Spahr, LLP

I. What are Let’s Play Videos?
The video game industry grew rapidly into an important
creative form of entertainment. Millions play games, socialize
about their favorite games, watch others play games, and
produce new audio visual content about games. One way
video game enthusiasts create content is by recording
videos of players playing a video game and their reaction.
This popular form of online entertainment is known as “Let’s
Play” videos.
Let’s Play videos can create value in several ways. A viewer
may watch to determine whether he wants to purchase the
game or learn strategies to succeed in the game. A viewer
may enjoy the personality of a specific YouTube figure
who regularly publishes Let’s Play videos. For example,
Felix Arvid Ulf Kjellberg, better known as his online alias
PewDiePie, has more than 6.8 billion views on his YouTube
channel. The video creator may use advertising to make
money. Right now, application of copyright law to this area
is unsettled.

II. Let’s Play Videos: The Copyright Analysis
Different game developers have different views on the use
of their work in Let’s Play videos. Some allow use of their
copyrighted material, with permission, in videos that follow
policy guidelines. Others forbid use of their material in any
video that makes money from advertising, or allow use but
require that they share in advertising revenue.
While no case has yet addressed copyright aspects of
Let’s Play videos, the first analysis in a case would be to
determine whether the videos infringed copyrights. A
court would consider, among other factors, whether such
videos constitute “public” “performance,” and whether the
videos constitute “derivative works” and/or “reproductions.”
Copyright case law provides specific analyses of all these
factors in many contexts.

common copyright infringement examples. However, even
if a Let’s Play video was found to infringe a copyright, the
video might be eligible for the “fair use” defense, where
“the fair use of a copyrighted work . . . for purposes such
as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research,
is not an infringement of copyright.” 17 U.S.C. § 107.
Courts consider four factors when evaluating whether “fair
use” applies:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work. Id.
Courts must consider all four factors in any fair use analysis,
although different factors may be more or less important
in specific cases. In 1994 the Supreme Court established
the principle of “transformative” fair use in Campbell v.
Acuff-Rose Music Inc., allowing courts to consider whether
allegedly infringing works add enough to be considered
something new. 510 U.S. 569, 578-579 (1994). All other
things being equal, a finding of transformative use favors a
finding of fair use.

III. Conclusion
The application of copyright law to Let’s Play videos is under
development. This growing form of entertainment would
benefit from more settled law.

There is no ready analogy between Let’s Play videos and
The Official News Publication of the Atlanta Bar Association

August/September 2015

THE ATLANTA LAWYER

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