Nintendo Creators Program, Let's Play Who Owns What
Today Nintendo announced a program, after several months of back and forth between themselves and YouTube/Google and the respective channels therein. The Nintendo Creators Program allows users to sign up, and receive a 60% cut of ad revenue from video featuring Nintendo content.
This is primarily aimed at large Youtube Channels and celebrities who indulge in the Let's Play phenomenon of the last few years and has already been met with flaming comments and angry fans.
Questions such as "Why should Nintendo get paid for something I have made?", "Nintendo benefit from Let's Plays so why should they see direct profit from the creators?", "Other companies don't do this, so why should Nintendo?" have proliferated the news articles so, rather than give out my personal opinions on the subject (and I do have these, I am allowed) this is a great opportunity to breakdown theories of ownership in a digital age, and relate them back to current streaming trends which have been causing such a headache for the creative industry.
First of all, lets look at the content of a game. A game is made of assets and mechanics, all of which work in tandem on a device to create the gameplay experience we know and love. Those assets are made up of 3D models, textures, music, levels, user interface overlays, 2D artwork. When I boot up a game, it often highlights specific pieces of middleware, or particular logos from associated companies, for instance Oddworld's New and Tasty Remaster is booting up telling me it was built in the Unity engine, and the blurb addresses the use of Playstation logos. There is also text detailing the ownership of the games content itself, the game was remastered by Just Add Water (and very well mind you) under licence from the copyright holder, Oddworld Inhabitants.
Who owns this image? The handsome devil in the corner, or the talented artists who made the rest?
The point of this is to address anyones concern that JAW haven't just gone off and made the game without first obtaining the permission of the original developer, and they are following the terms of use outlaid by both Unity and Sony for the 3D engine and design assets respectively. These licences are long, dull, legal, and cost money but ultimately result in the company being able to make use of these things, and we, the consumer of the product get an additional 10 seconds before we press play.
So far, so good right? We, the end user, buy the game, the respective companies get paid and we get to enjoy the product. The assets contained within the product do what the creators intended them to, the 3D animations play out, the music soundtracks our experience and we interact with the game to get our pleasure. But what if I want to share this experience? I can lend the game to a friend if I own it physically and in doing this I loose my access to the game. Fair enough, this has not upset the flow of profit, the copy of the game has not duplicated magically.
Digitally things get a little more complex, I could give someone access to my Steam, PSN, Xbox account and then they could download the game, and I could keep my copy too. Now someone is getting the game for free, but really, the licence restrictions in place on this content make it so I can only do this 2 or 3 times, which basically covers me if I have multiple machines in my house or one really good friend.
Anything beyond these methods is essentially piracy, the creators are no longer being paid for exact copies of what is being played.
But say if I just want to show someone the game? I can invite my friend around to my house and we can sit in front of the device and maybe even hand the controller to them when I'm comfortable they are not going to break my precious save game. There is nothing wrong here, when my friend leaves, suitably impressed, they may go get the same game, they may not. I also didn't gain anything through this, other than the transaction of bonding hormones that fire as we laugh and have a good time, I didn't charge my friends for this.
But what if I did? What if I charged my friends say, a few pence for the honour of coming to my house to watch me play a game? Would there be an issue here? According to most people, yes, I shouldn't be allowed friends. But also I'm directly profiting from somebody else's work. In the same way I can't charge people to come around my house to watch a movie without permission, I'm not a cinema, I don't have the facilities to provide that much popcorn. Let's just keep the analogy going, there is also no company paying me a set fee for the number of people who are turning up at my house watching the movie, instead of me charging a fee on the door. My friends would see the movie free, and I get paid? Genius business model, I'm surprised its not taken off.
I've now gone seven paragraphs without talking about Nintendo's service, but its important to get the basics down, because we currently live in a world where the rules applied to content often refers to our rights to play a piece of music, a movie, a game. These agreements, laws, licences were grounded in a time when I need to buy a physical thing in order to consume that content. The money from that purchase then cascades backwards, breaks down, is fought over and eventually ends up split between the creators, their management, the infrastructure that put the content in my hands and even the government. These laws treat me as simply a licence holder. I can't start my own chain of profit making from the product without involving the creators, their management, the infrastructure.. etc..etc. Our rights to share content came down to that these products were physical things.
But this is not the world we live in now. We live in a world that is connected, a world were I can stream whatever I see onto the internet. I can share all forms of content, be it my own or someone else's. As long as I have internet I can share, and so can everyone else. It's a brave new world. But what if what I am sharing is based on content someone else has made?
In the UK we have a concept called 'fair use'. This allows a creator of say, a documentary, to pull a quote, piece of music or film to make a specific point. This policy was put in place to ensure people could create work that could criticise or educate without the fear of having their product restricted if a company refused to sign it off. Typically this means short clips of music or film of 10-30 seconds can be used if they are within context. There is also 'incidental inclusion', which is say a song playing in a club behind a news interview or billboards and shopfronts behind a certain scene are generally overlooked. Everything else? it falls under the copyright of the content creator. copyright laws vary depending on the country, and you can see its effects as logos get blurred out and shoddy sound-a-like tracks play out when a budget could not stretch to the original.
But now we get to the crux of the issue. If I take extended footage from a game, and overlay it with my own content (me talking about the game, or responding to comments, or even critiquing as I play) is that 'Fair Use'? After all, I could play though the whole game, or just a few levels, but what is on the screen is the hard work of a developer, a sound designer, musician and artist. The typical fair use law is stretched beyond its means, that 30 seconds becomes 30 minutes, an hour. The nature of YouTube allows these videos to exist and until the user presses the 'monetise' button there is often little argument to be had.
The wires become tangled though. Earlier on I mentioned Sony and Unity logos at the front of a game, what if I'm a musician (full disclosure, I'm a musician), and I've licensed a song to a game, that blares out over the menu screens. Every time the Let's Player enters or stays in a menu and my song plays out in full, should I be paid? After all I would be either taking a percentage of the earnings from the game, or would have been paid a set fee. But the live stream is now distributing my song to two, ten, eighty-nine, two thousand people, and I don't see a payment? Okay, its a stretch, but is that fair use?
Most agreements bind the creators of games, music, media into use for advertising purposes. I would argue that yes, this is fair use of the licence I signed the track/film/game away on. I may not like that something I've made is suddenly in front of a million people, and I'm not seeing a profit from it, but it could drive people to my own sites, more people may buy the game, download an album and more. The Let's Play video goes on, the streamer gains fans and subscribers. We are all happy.
But does the fair use argument hold up when the Let's Play video generates a profit for the creator? We now have a model which allows for adverts to pop up before, after and in the middle of videos, and every impression generates income for the uploader of the content. Content that is way beyond the length of Fair Use, and is made up entirely of assets belonging or licensed to the developer or publisher of the game. That music our musician made is now blaring out in full over the top of a video that is generating income for someone wholly unrelated to the project. Is that Fair Use? There is argument to be made that the biggest streamers, sharing this footage could drive more people to buy the product, allowing the makers to profit from their popularity, but is it still right to then draw a profit from that? Do they 'own' that game footage? By playing a game, does the experience, which is uniquely yours, but created entirely from assets created by the developer, belong to the player, or its creators?
We have a digital situation right now that is similar to me allowing people into my house, and letting them watch my films, listen to my music and watch me play games, yet Coca Cola give me money to furnish my house in red and have drinks served in those classic style glasses.
Finally we come to Nintendo, who after previously issuing copyright takedowns previously, where they assert full ownership, have come out with a creators program which allows people to keep 60% of advertising revenue from videos featuring Nintendo products. Unlike the EAs and Activisons of the world, Nintendo is a closed shop, their products are very much their own, full of their characters, in worlds of their creation, with music they own, their intellectual property. Rarely, beyond cameo appearances, does Nintendo branch out to the world of licences (*cough*Goldeneye*cough*). This means is you as pull in Nintendo footage, they are confident everything belongs to them. The deal Nintendo have offered still assures them that they gain profit from any advertising associated with their property. After all we have discussed above, in legal terms it is refreshing to see a large company offer a compromise, and it fits within the model of fair use/for profit that has sustained the media industry for many years. Yet it also allows for the streamers, the Let's Players, to still eek revenue from something that is both not belonging to them intellectually, but respecting of the unique experience each of us has with interactive entertainment.
The way of the internet has always been to allow for everything, then slowly figure out the rights and wrongs. See Napster, see Torrents, see age limits, see privacy. YouTube has always been in favour of the content creator, and it allows them to flourish. It also gives control to creators/owners preventing their media being used without permission. Let's Plays videos are wedged somewhere between, and Nintendo have, admittedly on their own terms, submitted a solution to what could increasingly become a legal minefield.
2087
baratheonpilled
gummygunk
janainaart
titsay
turnnoffyourmind
origamiaround
yousharknotpass
