"As an industry, we don't really follow the law and we all do it."


In September of last year, the developer of Firewatch issued a DMCA takedown against now infamous YouTuber PewDiePie after he used a racial slur during a live stream of another title. The incident didn’t make headlines only because of PewDiePie’s profile or the fact that the game Firewatch wasn’t directly involved—this also represented a rare instance of legal rights being asserted between game maker and game streamer.

As much as video games are an interactive medium, in recent years an entire scene has grown out of people such as PewDiePie streaming video games online. Be it live streaming on Twitch, or Let's Plays or other types of video content on YouTube, gaming has gone from just something players do at home, to something that they also watch other people do online.

As these streamers and personalities have grown in popularity, so too has the discussion over the rights of streamers and developers in regards to said content. Are streams covered under fair use with content creators allowed to make money off of them? Or should the original creators of the games have a say in how their products are used in the public eye, not to mention a chance to generate profit? Developers like Ubisoft and Microsoft have shown a willingness to work with creators and encourage game streaming (and earning). Nintendo, on the other hand, is known for enforcing its copyright in this area. Atlus, too, received pushback surrounding the company's initial policy for streaming Persona 5.

To attempt to dig into all sides of the debate, we cast a wide net. However, YouTube declined to make anybody available on the record, and Twitch passed on being involved, as well. On the developer side, Campo Santo offered a small statement in support of streamers but preferred to have no further involvement. Riot Games pointed to its legal page, saying it had nothing else to add.

We did talk to streamers—and a lawyer—to get a look at their sides of the situation, capturing a picture of some of the current schools of thought surrounding streaming video-game content online and what it may take to change the way things are now. But today, streamers continue to pump out videos, just as developers continue to create games, even if streaming’s future is uncertain.

An example of Naka Teleeli's work (on the classic Majora's Mask)

An advertising-arial relationship


Naka Teleeli posted his first video in 2008. In one of his videos about Wonder Boy: The Dragon’s Trap, Teleeli informatively presented history about the series before going into his epic narration of the game’s intro text. He mostly does Let's Play—where he’ll play a game while providing audio commentary—videos, with a focus on somewhat retro games and indie titles. Currently, he has almost 40,000 subscribers on YouTube.

"I understand that legally it's a very grey area, and there's been a lot of arguments for both sides that all the content being shown is actually owned by the original person, or it's transformative, and I honestly understand both sides of the story, because all the content you're seeing is indeed owned by someone else, they made this content,” Teleeli says. “But at the same time, I also see it as transformative."

One reason he sees it as transformative is because viewers who watch videos aren't playing the game. While the literal imagery being viewed may be the same—whether playing the game or watching someone else do it—the input experiences are different.

"The whole point of games, is to play them," Teleeli says. "Removing that, and then on top of that adding in our own commentary, our own reactions, the way we progress through the game and react to what's going on, I think that's very transformative ... If you think about it, watching a Let's Play is not even remotely the same thing as playing the game yourself.”

While he may see the experiences as different, Teleeli added that most of the content being seen is still the same and that he can see both sides. “Personally, I'm of the opinion that I think some kind of middle ground, legal middle ground, would be nice," he says.

Even though he does consider Let's Plays as a legal and transformative thing that is allowed, that aspect of the business remains a worry for Teleeli. "If somebody sets their mind to it, it's very easy to get a channel taken down," Teleeli says. And to a degree, the streamer agrees that developers should have a legal right to control their game footage, though he doesn't agree with "how some things are flagged and why." And while Teleeli hears stories about people watching videos instead of playing a game personally, he doesn’t feel those were lost sales: such a person probably wouldn’t have purchased the game anyways.

"I've also heard any number of people that say they have gone out and bought a game, because they saw me playing it," Teleeli. "So, if we think of it as an advertisement, I actually think it fits very well.”

“I think the more open developers are working with people making videos for their games, the better, because these are people that are, in my opinion anyway, advertising their games," he says.

And while Teleeli thinks that content creators should be friendly and outgoing, he also thinks that they should keep control over streams made with their products.

"The biggest thing that I want is things mostly to stay how they are, only with the developers and content creators simply being more forthcoming and cooperative," he added.

Ray Narvaez Jr., aka BrownMan, walks viewers through Stardew Valley

A dangerous game

Ray Narvaez Jr.—also known as BrownMan on Twitch—has been operating his current channel full time since 2015. He currently has around 430,000 followers. A self-described variety streamer, he tends to focus on newer releases. In his recent mature stream of The Godfather: The Game, Narvaez played the game while chatting about things including Civilization, The Smurf’s 2, and cracked a joke about New Jersey. And as for his streams, he sees them somewhere between being his creation and a developer creation.

"If anything, it leads toward more of the game developer, whoever created the game or whatever the person's playing, because at the end of the day it's their product, it's their creation," Narvaez says. "The fact that their nice enough to just let anyone kind of play it on YouTube or Twitch or whatever is very beneficial, in a way it's kind of free advertising, though I know some developers don't see it that way.”

It's obvious to Narvaez that streamers add their own thing to their video, but that developers still have a majority in such a percentage. He does consider streams legal and has never run into any legal problems with developers on his channel. And while he makes money on the streams, he sees it he same as Teleeli: this is free advertising. "I feel like we are helping them in the long run," Narvaez says.

In fact, Narvaez has hears directly from game creators. Indie developers especially will reach out to Narvaez wanting coverage. But if a developer doesn't want their title streamed, Narvaez thinks they have that right.

"It's their game, right?" Narvaez says. "Like, who are we to say no? ... I think [a takedown] would be a very dumb move, but I think they're completely in their right to do that if they wanted to."

In terms of developers, Narvaez thinks the only area they should police is if somebody gets a copy of a game early. "But I think once the game is out there and anyone can buy it, I think at that point they should just be done with it and move on to whatever they want to do with the game, or next project, or whatever," Narvaez says.

And as for issuing strikes based on inappropriate conduct—like the Campo Santo and PewDiePie situation earlier this year—Narvaez doesn't think that's something developers should be able to do a year after the fact.

"He said really disgusting and awful things, but does that mean, you know, they're going to scour YouTube or Twitch or whatever and just listen to everything and if you say something they don't agree with, they're just going to like strike you down?" Narvaez says. "Like, I don't think that makes any sense.”

“Maybe, maybe if it was while he was playing the game you could step in, but even then I don't know,” he says. (Remember, PewDiePie's racial slur was made during a live stream of a game that wasn't Campo Santo's.)

"You're playing a very dangerous game if you start like, handing out strikes to people playing your game if they say something you don't agree with," Narvaez continues. "If it's something sexist or racist or something like that I'm sure you would want YouTube in that sense to step in, and not have the developer step in."

The law

While streamers may have one idea of how their livelihoods should work, that doesn’t mean that the law is going to be automatically on their side. The question has become one to watch for many legal researchers, law watchers, and lawyers themselves. While no developers would agree to talk for this article, we did speak with a lawyer versed in this realm to get another view of this complex segment of industry.

According to Ryan Morrison—founding partner of Morrison/Lee, a firm that’s practice areas include the DMCA, streaming and YouTube, and video games —there are presently multiple schools of legal thought on both sides.

"I think the most legally accurate response right now is that Let's Play videos and most streams are derivative works and therefore infringing if you don't have a license from the publisher or game developer," Morrison says. But the attorney added that there is a fair use argument that streamers could make, but fair use is a defense that essentially admits to infringement and tries to explain why that use is OK.

"That's super expensive to prove," Morrison says. "A judge has to be the one to say it's fair use, and you can spend six figures to get there, and it's certainly not a black or white line that you can just OK. So, keeping that in mind, without a license and without the permission of the publisher or developer, streaming is infringing—as are Let's Play videos."

Morrison wasn't currently aware of any cases, but he expects they're coming. But currently all the power is in the hands of publishers and developers. And while some may believe that if they aren't making money off a project they are legally sound, Morrison says otherwise.

"People think that if it's free it's fair use, and that's just categorically not true," Morrison says. "One of the factors in a fair use test is whether it is free or not, but the long story short is that that's not the deciding factor by any means and it's one of four ... Will it help your case? Sure. But it's certainly not going to prevent you from having a fair use case or an infringement case brought against you and having your life ruined."

Of course, not all videos are made equal. As any media law 101 course would tell you, another core tenant of fair use is the amount and substantiality of the original work being used.

"The more you add to something, the less likely it is infringement," Morrison says. "You can see that with react videos all over the place, if you're actually adding commentary and adding your own skits or, you know, whatever to it, that's going to be a lot different than just watching a video. And same with Let's Play videos—if you're actually adding something to the video, and the game play, it's a lot different than just playing the game quietly."

Shades of grey

While streamers may be looking for fair use to save them, Morrison notes the cost of doing so in the industry: “It's all a grey area," he says. Morrison does believe “a reasonable judge who understands the technology in question would rule in favor of fair use; unfortunately that does not describe most judges.” And lengthy court battles, even if victorious, could still cost money.

Instead, Morrison points out that some companies do nowadays offer licenses that allow people to stream their games. Some of these agreements say "you're allowed to stream their games and it's just kind of carpet across the entire world, and other companies require you to get an actual formal license from them," he notes. For Morrison, this is where the industry is going in the short-term. Campo Santo’s webpage for Firewatch, as just one example, lays out that it allows people to stream and monetize the game, but this language notes “implicit but revokable privileges.”

"Every asset in a video game—every mesh, texture, sound file, and bit of code—is subject to copyright," Morrison says. "Owners of copyrighted works have a bundle of rights that come with their intellectual property under Title 17 of the United States Code, including the right to control the reproduction, distribution, derivative works, public performance, public display, and transmission of their copyrighted works. Streaming a game on Twitch treads astray of those rights.

So while some developers have license clauses in their Terms of Service, affiliate programs that grant a license, or simply do not enforce their rights against streamers, without a license, streaming may fall astray of a copyright owner's rights in their game. If the copyright owner has registered their copyright with the federal government, it may even give the owner the right to sue for copyright infringement under federal law, which can carry fines of up to $150,000."

So for now, most streams still stand as illegal—a violation of copyright law according to Morrison. Simultaneously, they remain something that's largely uninterrupted and plenty of streamers have created livelihoods from.

"As an industry, we don't really follow the law and we all do it, and yes, developers are able to take things down basically on a whim, but it's terrible PR for them so we police ourselves as an industry rather than relying on archaic laws,” Morrison says. “And I think as long as you don't say the n-word, you'll be pretty OK."

Of course, it only takes one high profile incident to potentially swing the future of streaming one way or the other. And while he's not confident that will happen, Morrison isn't sure what will either. Instead, he sees multiple ways streaming's future could play out when it's time to move beyond the current grey area.

"It's either going to be a lawsuit that goes forward and actually settles or actually goes all the way to judgment, which is insanely unlikely," Morrison says. "It will take a piece of legislation, which would require one of our politicians to understand what a computer is, which is insanely unlikely. Or, it would take a group like the ESRB to come out and post some actual rules and guidelines here ... I think they're pretty behind on this stuff. Maybe we need an ancillary, separate group that handles streaming."

About the PewDiePie/Firew*tch fact it's so ridiculous how some companies and especially classic media (from the stoneage period) are trying to find anyway to feed on his popularity...