Fez Creator: YouTubers Are "Stealing" Content From Game Developers

[prowll]

The problem is, he is right, and I say this as a maker of videos (ones that get a total of 10 views each but that's not the point). All of the arguments saying that the devs already have their money are predicated on the idea that games change depending on the person playing them, which is true.

But the art assets, the sounds and the way the game works doesn't.

If you remix a song or make a parody of it , the original song creator is due a cut of the money made from it, because you still used part of there work. It should be no different here REGARDLESS of how its being used. Doesn't matter if its for a review, a lets play or a speedrun, you are still using their game. People always shout free advertising but the YouTubers that say that should think about what they mean by that, as if its really free advertising they are admitting that they have no creditability. For it to be advertising the developer has to have a hand in how its presenting, in making sure that its presented in a good way to show there product how they want it to be seen, they don't have that with the youtubers.

If they say they are giving free EXPOSURE then I would agree, but that's a different thing. I would also expect when you say that people would be more likely to say "ok so why don't you give the dev some of your cash".

Oh and the idea that game devs should pay youtubers for the extra sales the youtubers make, thats one step away from "pay us money to show us your game, you will tend to make x% extra sales" level of dickbaggery. Youtubers are getting there money, building the fanbase and the big ones also have there own fan stores as well.If they want to sign up for a commission based store then go ahead, but make it obvious you are making money if you click the link under the video. This already happens for some.

The idea that the game dev should take a "big" cut is a bit silly however, but they really should get a cut, and this is irregardless of what you feel about Phil Fish, its like the CliffyB stuff on reddit yesterday about NeoGaf. Just because you don't like the guy doesn't mean hes wrong all the time.

In England even the Tories manage to do something sensible now and again, even if that is once in a blue moon.

I believe you are incorrect, at least in American law. Parodies don't have to pay back to the person that they are using the original of. Wierd Al Yankovic for instance has famously never paid anyone for doing what he does. Now, Wierd Al gets permission first, but that's because he's generally a nice guy, not that he is legally required to do so.

Having said that, I agree that there may be a need for a small cut for the developers, but really, these videos are not making a ton of money, and so we are quibbling over pennies, when in most cases, the lions' share of the game developers money is going to be made selling the game. If sending a copy to a let's player gets you 10,000 more sales, it was a small drop in the advertizing bucket well spent.

I have a feeling that Phil is, again, not the right person to bring any of this up, as it seems that he's more upset over lost sales due to people going '... nope, that game's bollocks' and not buying.

 

[Signa]

Derivative works. Simple as that.

 

[RonHiler]

This works both ways. LP videos drive sales of games. If I do an LP, I'm advertising your games. People will go out and buy the game because of the videos.

So I'll tell ya what, Phil. I'll pay you a portion of my advertising income from my LPs, as long as you pay me a portion of your sales for the advertising I'm doing for you. Let's call it 20% both ways. I think that is fair.

 

[Wolf Hagen]

Well congratz, paying folks after they already gave money (without getting anything extra like a DLC or such).

And not strictly beeing a movie (a thing you defenatly can experience 100% by watching it, unlike a game) or music (same as movies, just with sound) beeing put up on youtube, in 1/3 of all videos with either eerie commentary, sometimes a fun joke or aimless screams for cheap horror effects.

The only way LP are harming the Publisher is, if they made a shitty product, and get called out because of it, loosing sales like mad (examples are too many to list).
Other games gain popularity beyound anything (like Goat Simulator, Slenderman) and making even bigger sales then before.
Offensive Youtubebait mostly gets called out and just left lying in the corner, probably only bought by those, to show others, that they are just Youtubebait (kinda ironic to say the least).

Nontheless the fact, that a hellbunch of the thousands of LPers arent monatizing, maybe about 20, that get their 200K views (and monetized numbers in that regard are prolly even less).
So, whatever any puplisher Hopes to get out of this (since Youtube monetization doesn't make big bucks), they probably expect more then just 20$ per Youtuber, that does Let's plays.
And if the Content Industry goes this mile nontheless, the youtubers might avoid games, where they get letters from big companys (who they already paid) in their lets plays.

However the Industry (by that point just our loudmouth retiree Phil and maybe Nintendo) will decide, they will end this topic on a "loose - loose" Scenario for themselves.

 

[FFMaster]

I believe you are incorrect, at least in American law. Parodies don't have to pay back to the person that they are using the original of. Wierd Al Yankovic for instance has famously never paid anyone for doing what he does. Now, Wierd Al gets permission first, but that's because he's generally a nice guy, not that he is legally required to do so.

Having said that, I agree that there may be a need for a small cut for the developers, but really, these videos are not making a ton of money, and so we are quibbling over pennies, when in most cases, the lions' share of the game developers money is going to be made selling the game. If sending a copy to a let's player gets you 10,000 more sales, it was a small drop in the advertizing bucket well spent.

I have a feeling that Phil is, again, not the right person to bring any of this up, as it seems that he's more upset over lost sales due to people going '... nope, that game's bollocks' and not buying.

By getting permission he is effectively getting a license to use it, money doesn't have to change hands but the person who owns the copyright said yeah ok. Again since fair use is case by case yeah he might not have to, but if he doesn't he could get hit later saying "this is not fair use".

You also can't say these videos are not making a ton of money the same week a guesstimate is out saying that one of the youtubers made about 4 million bucks in a year...

This is also not about sending the game to a youtuber, its about the youtuber taking it upon themselves to "advertise" the game (and lets face it, not all youtube videos are advertisements if they are busy showing how crap it is) and earning money from it.

There is a paper i found via a quick google, old but specifically about wierd al (oddly, guess a university dissertation like thing) which amongst its conclusions that unlicensed parody of a copyrighted work in a commercial advertising context will rarely be construed as fair use. Yes its referring to adverts but i would imagine this would link up to youtube videos with regard to fair use.

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1002&context=iplj

i agree with you that some money should be paid, as i highly doubt that any court would see the purchase of the game as the purchaser of the right to make money via broadcasting the game with no additional license fees payable as fair use if it went to court but lets not kid ourselves here. NEITHER party actually wants this sort of thing to go to court, because it would set the precedent (even tho fair use is done case by case a precedent would make people more afraid to argue it) and both are afraid of what would happen should it get set.

 

[Dragonbums]

I was wondering when Fish was going to run out of money and start blabbing off again. I'm genuinely surprised though. He's got to be the first person to cry "I QUIT THE INTERNETS!" and actually manage to do that for more than 2 month.

 

[Glaice]

Shut up Fish, go away you whiny, entitled little brat of a developer who goes and tells someone on their Twitter to compare themselves to him and kill themselves. LPs drive sales, not deter them you idiot. You're just being greedy with this baseless statement on "Piracy" because it's not "Piracy", it's free publicity. "Piracy" would be downloading Fez from a Torrent site.

 

[Ambitiousmould]

As much as a douche as this man clearly is, he does have a point. On the one hand, these youtubers are using vast, vast amounts of others people's work, often most of the video is the game, and certainly they wouldn't have anything without those games to feature in their videos.

On the other hand, it would be a little bit like expecting the Top Gear crew to pay royalties to the manufacturers of the cars that they are driving across a continent because they didn't make them and there wouldn't be a show without.

I suppose at the end of the day, the element of interactivity makes watching a game very unlike playing one, so it could certainly be argued that nobody is watching let's plays as a substitute to buying a game, and in a lot of instances these youtubers are essentially free advertisers. I know that I have bought more than one game because I watched a youtube video and decided I want in on whatever game is being played. And if a developer is worried that a let's play will make people feel as though they have fully experienced their game and need not buy it, then perhaps you have other things to worry about, like making better gameplay.

 

[xaszatm]

You know what? I'm going to say it: this Let's Play thing isn't as black and white as you want to believe. While I'm not entirely on Phil Fish's side, the very idea that Let's Plays should count as "free advertisement" and with some people saying that the developers SHOULD be paying Let's Players reeks of con artistry. You sound less like a passionate person and more like the guy who washes (badly) car windows during a traffic jam and then demand payment because you did a "service." In fact, giving the gaming's entitled attitude about the entire damn thing (though, to be fair, Phil Fish's attitude didn't help much), perhaps we should finally bring this issue to the courts to see whether your meager excuses hold up to the actual law.

That being said, I'm not against Let's Plays themselves nor am I saying that they shouldn't be paid. I will say however that it should depend on the developer to decide whether or not they will allow it. The main reason is because, unlike a review, critique, or even a short preview, a Let's Play usually entails playing a game from start to finish with little to no editing. And yes, before you even ask, as someone who has done Let's Plays, I am fully aware of the time it takes to make one. But unless you are making Let's Plays in the style of ProtonJon's Superman 64, you're not doing that much work editing.

Now, before I tackle the reasons people are going to counter my argument with, let me say that I am only talking about Let's Plays. Reviews, Critiques, and previews could fall under Fair Use given the past with books, movies, and other media forms. Now, the definition of Let's Plays is a bit loose but for the purposes of what I'm explaining here, I will try to give a more concrete definition. A Let's Play consists of a few things:

* A video game is played over a video or group of videos from the beginning of the game to the end.
* The video game is being commented on by a person or a group of people
* There is little to no editing involved to show as much gameplay as possible.

Now, given this definition, some Let's Plays (like Minecraft and the before mention Superman 64 Let's Play by ProtonJon) don't fall into this definition, which is why I say that this thing is a grey area. But for the purposes of this discussion, let's concentrate on the ones that follow this definition (which is the most common type of Let's Play anyways).

The first counterargument I see here is that Let's Plays are a transformative work, as such they fall under fair use. Because no people can play it the same way, watching someone play a Let's Play would be inherently different than playing the game itself. Now, there are a few games (Minecraft, Terarria, and Starbound to name a few) in which this argument has merit. However, I would argue that not all games (and indeed, the majority of them) can make good use of this excuse. Games like Visual Novels (Ace Attorney, Professor Layton), many JRPGs (Project X Zone, Final Fantasy XIII), and story driven games (Wolf Among Us, Walking Dead) involve very little gameplay and focus more on the story to convey its worth. If I can watch these on Youtube, it can be argued that these could substitute actually playing the game. As for games between sandbox and visual novels, there exists are large grey area. Arguments for both sides can be made which is why I said that it should be up to the developer to decide what he wants.

The second counterargument I see is the "free advertisement" excuse. Which, I'm sorry, is not an excuse at all. It really is like me saying that because I told everyone in my town to buy a Wii U, Nintendo should pay me money helping them sell. After all, I'm freely advertising the game. Furthermore, if you really wanted to argue that you were doing a free advertisement of the game, could I then counter that if you did not do a good job Let's Playing or even used the Let's Play to criticize the game, I could demand reparations for doing a bad job advertising my game? Could I hold you accountable for failing to advertise my game properly? Do you see how big a slippery slope this excuse is? There are other reasons why Let's Players should get paid that can be debated so can we just stop picking the one that can be broken into a million pieces within the first two minutes of a court of law?

 

[WhiteTigerShiro]

I find it amusing that instead of seeing it as "Free Advertising" he sees it as "WAHHHHHHHHH! Someone is watching my game! They might decide to buy it in future but I'm not getting money now! WAAAAAAAAAAHHHHHHHHHH!"

To be fair, the complaint isn't that the money will come later, it's that the money might not come at all. After watching a game from beginning to end, they feel a person is less likely to want to buy the game. After-all, they've already seen the whole thing, now they can devote their time to playing a game that isn't on YouTube.

 

[xaszatm]

Spoiler

You know what? I'm going to say it: this Let's Play thing isn't as black and white as you want to believe. While I'm not entirely on Phil Fish's side, the very idea that Let's Plays should count as "free advertisement" and with some people saying that the developers SHOULD be paying Let's Players reeks of con artistry. You sound less like a passionate person and more like the guy who washes (badly) car windows during a traffic jam and then demand payment because you did a "service." In fact, giving the gaming's entitled attitude about the entire damn thing (though, to be fair, Phil Fish's attitude didn't help much), perhaps we should finally bring this issue to the courts to see whether your meager excuses hold up to the actual law.

That being said, I'm not against Let's Plays themselves nor am I saying that they shouldn't be paid. I will say however that it should depend on the developer to decide whether or not they will allow it. The main reason is because, unlike a review, critique, or even a short preview, a Let's Play usually entails playing a game from start to finish with little to no editing. And yes, before you even ask, as someone who has done Let's Plays, I am fully aware of the time it takes to make one. But unless you are making Let's Plays in the style of ProtonJon's Superman 64, you're not doing that much work editing.

Now, before I tackle the reasons people are going to counter my argument with, let me say that I am only talking about Let's Plays. Reviews, Critiques, and previews could fall under Fair Use given the past with books, movies, and other media forms. Now, the definition of Let's Plays is a bit loose but for the purposes of what I'm explaining here, I will try to give a more concrete definition. A Let's Play consists of a few things:

* A video game is played over a video or group of videos from the beginning of the game to the end.
* The video game is being commented on by a person or a group of people
* There is little to no editing involved to show as much gameplay as possible.

Now, given this definition, some Let's Plays (like Minecraft and the before mention Superman 64 Let's Play by ProtonJon) don't fall into this definition, which is why I say that this thing is a grey area. But for the purposes of this discussion, let's concentrate on the ones that follow this definition (which is the most common type of Let's Play anyways).

The first counterargument I see here is that Let's Plays are a transformative work, as such they fall under fair use. Because no people can play it the same way, watching someone play a Let's Play would be inherently different than playing the game itself. Now, there are a few games (Minecraft, Terarria, and Starbound to name a few) in which this argument has merit. However, I would argue that not all games (and indeed, the majority of them) can make good use of this excuse. Games like Visual Novels (Ace Attorney, Professor Layton), many JRPGs (Project X Zone, Final Fantasy XIII), and story driven games (Wolf Among Us, Walking Dead) involve very little gameplay and focus more on the story to convey its worth. If I can watch these on Youtube, it can be argued that these could substitute actually playing the game. As for games between sandbox and visual novels, there exists are large grey area. Arguments for both sides can be made which is why I said that it should be up to the developer to decide what he wants.

The second counterargument I see is the "free advertisement" excuse. Which, I'm sorry, is not an excuse at all. It really is like me saying that because I told everyone in my town to buy a Wii U, Nintendo should pay me money helping them sell. After all, I'm freely advertising the game. Furthermore, if you really wanted to argue that you were doing a free advertisement of the game, could I then counter that if you did not do a good job Let's Playing or even used the Let's Play to criticize the game, I could demand reparations for doing a bad job advertising my game? Could I hold you accountable for failing to advertise my game properly? Do you see how big a slippery slope this excuse is? There are other reasons why Let's Players should get paid that can be debated so can we just stop picking the one that can be broken into a million pieces within the first two minutes of a court of law?

Non-network Youtube users already get hammered by the copyright claim system with little or no recourse and have for YEARS. Even big, networks supported lets players already get arbitrarily flagged for snippets of in game music and the like even for criticism works like reviews or general media things like top tens. Nintendo already did this. It said anyone playing their games would have their videos claimed. Sega initiated a massive copyright removal sweep a few years ago that closed many people's accounts for any use of footage of certain games. Developers CAN do this. This has already been done and devs fully have the option to claim footage, even publicity trailer footage in the case of Nintendo,of their games. The thing is they DON'T do this because, as we saw with Nintendo, people who make income off revenue simply stopped playing their games and their media profile plummeted.

If developers took a "Huge Chunk" of the revenue from the big lets players there wouldn't BE any big lets play channels. The time investment to have good productions values whilst fostering a community and being active enough to create a critical mass of audience is full time job at this point. In order to make a living from videos and keep your view numbers consistent you need a video ideally daily.

I don't think people grasp that unless developers want to take over the job of making lets play videos themselves there is no way to give them a meaningful amount of the ad money (which YouTube already takes a hefty cut of) without putting those making YouTube content out of business. It's the fabled 'internet money'.

What does this statement have to do with what I said? I said that, as Let's Plays are such a grey area, that it should ultimately fall onto the developer to decide whether or not they want to allow the monetization of their video games. Does this mean that Let's Plays will be biased to certain games? Well, how is that any different than the current Let's Play scene right now?

 

[gamegod25]

Even when "retired" Phil can't help but open his mouth and say something profoundly stupid. Nothing ever changes.

Yeah as soon as I saw the headline I was like "Hoo-boy, here we go again...." because here comes another shit storm.

Talk about breaking your silence (so to speak) just to say something controversial.

Personally while I can understand where they are coming from I still disagree. Those videos are free advertising and most you tube people don't make a lot (or any) money for doing these videos. For many gamers it's just something they do for fun to share with others. If a game is good and looks fun then people will likely by it too, if its a vapid "one-and-done" popcorn game then yeah they probably won't. Much like game publishers punishing their consumers with DRM in the attempt to stop piracy, they would probably do better working with people than trying to shake them down.

 

[Scrythe]

Amusingly enough, after his "retirement", his Twitter account was essentially a music link dump until recently when he sent a tweet to Notch, jokingly asking to merge his company with Mojang after Notch made a tweet about "selling his share of Mojang" to escape all of the hate he's been getting about EULA's.

Then immediately followed up that tweet with one essentially telling the world that he's still alive, and that FEZ 2 is back in production.

I'm not sure if he's just trolling, or if he literally couldn't stand being out of the limelight for longer than a year.

Having said that, I can't be completely mad at him. I actually made some decent pocket change betting on how long it would take before he came out of his retirement. I won't go into details, but I certainly made more money than what I lost after Doug Walker returned to the Nostalgia Critic.

 

[vallorn]

To me fish is being a colossal fool. These video creators are providing a service to the gaming market which is in demand and so they make money. The market also tends to allocate more views and therefore more revenue to higher quality content (with some exceptions). If fish desires to have a share of these revenues he should be providing a service of his own in competition rather than being the kind of guy who just tries to throttle any competition to his business model like a music exec or isp Boardman.

 

[Fox12]

I like Neil Gaimans take on the issue. He used to hate it when people posted his books online. Then he noticed something strange. They sold better. Basically it was a sample, or advertising, that drove sells. You can now listen to the entirety of The Graveyard Book, legally, read by Neil Gaiman himself on YouTube. As long as the videos have commentary over the playthrougha, I don't have a problem with them existing. I won't buy a game I haven't seen some gameplay footage of. As a result I haven't bought a bad game in years.

 

[chiggerwood]

Phil Fish is acting like an immature asshat? NO! You're kidding me! Next you're going to tell me that tomorrow the sun will rise or that the tide will come in. Seriously the guy had one good idea and then proved himself to be a complete asshole that makes gamers and game creators look like the kind of immature whining shithead that the media always portrays us to be, so I'm glad that he quit.

There are thousands of creative minds out there that aren't nearly as toxic as he is, so I say we just ignore him until he finally gets the hint and fucks off.

As for streaming content and let's plays allow me to share my opinion with an anecdote: I recently saw a let's play of Viscera Cleanup Detail that made me want to buy the game, so I bought it. I knew about this game before hand but the advertising never really sold me on it; an LP did. Developers should just enjoy the free advertising where they can get it, and thankfully more and more are, Devolver Digital being a prime example.

Another problem is that comparing video games to movies has always been to the determent of the medium, those who don't already need to realize that they are different beast and act accordingly. What is good for one, or what sells for one does not for the other. A movie is set in stone, no matter how many times you watch it, Foster Charles Kane say "Rosebud" then dies, Hans Beckert will always break down and beg for mercy because he can't control his impulses, and James Smith will always shout "Everybody's got aids and shit!" Game are different, the characters are not fated to the same actions again and again and again, Captain Walker's may choose a different hostage or try attacking a the snipers, or just walk on by, The Vault Kid may use the FEV instead of destroying it, Trevor might actually obey traffic laws, and if you make a game where the characters are living La Vida Groundhogs Day then you have fucked up.