Fair Use And Transformative Works In Videogames

Author: LawSphereX

Category: General Law

Published: 2026-08-23T19:48:27.009563+00:00

Updated: 2026-08-26T17:11:29.497+00:00

FAIR USE AND TRANSFORMATIVE WORKS IN

VIDEOGAMES

Arya Mishra, BBA LLB, KIIT School of Law

ABSTRACT

Venturing into the world of video games, where pixels collide and stories unfold, reveals not just a playground for players but a battleground of legal complexities. Beginning with the proliferation of Let's Play videos on websites like as YouTube and continuing with the adrenaline-fueled speed runs that are broadcast on Twitch. tv, the gaming world has evolved into a phenomenon that is observed all over the world. However, despite the excitement of gameplay and the commotion of online groups, there is a danger lurking in the shadows: the threat of copyright law. Within this digital sphere, where creativity and business collide, there are a multitude of questions: Are Let's Plays merely a form of entertainment or do they constitute an infringement of copyright? The question is whether livestreams give games a new lease on life or whether they strangle the rights of the developers.

We invite you to accompany us as we embark on a voyage across the pixelated landscapes of video game culture. Along the way, we will navigate the twists and turns of copyright law, fair use doctrine, and the evershifting dynamics of the video game industry. The quest for understanding, the desire for balance, and most importantly, the quest for the core of gaming in the digital age are all part of this endeavour. Keywords: Video games, Let's Plays, Livestreams, Copyright Law, Fair Use, Public Performance, Transformative Use, Market Effect.

LITERATURE REVIEW

In “Gameplay videos and fair use in the age of tricks, glitches and gamer creativity” by Howard S. Chen, he discusses the application of fair use to gameplay videos, analysing the four factors that courts consider when determining fair use. It explores Let's Play videos and speed run videos as two major types of gameplay videos and discusses their transformative nature. The review also examines the nature of the copyrighted work and the amount and substantiality of the copyrighted work taken. It concludes that speed run videos may satisfy the third factor of fair use due to the minimal amount of game material they display, while Let's Play videos may satisfy this factor if they are considered transformative. He also discusses the legal implications of gameplay videos, including copyright protection and potential market harm.

In the following paper I have taken inspiration on the four factors stated to fulfil the doctrine of fair use Overall, the paper suggests that the analysis of fair use in the context of gameplay videos should be done on a case-by-case basis. In “Fair Play: Copyright Issues and Fair Use in Youtube "Let's Plays" and Video Game Livestreams” by Sebastian C. Mejia, we see that the article discusses the copyright issues and fair use considerations related to "Let's Plays" and video game livestreams on YouTube. The author explores the legal implications of using copyrighted content in these types of videos and provides insights into the application of fair use principles. I have taken the review behind Rights of Reproduction, Display, Public Performance and Distribution from the paper have merged it with leading cases and explanations. In “Public Performance?

How Let's Plays and Livestreams May Be Escaping the Reach of Traditional Copyright Law” by Brianna K. Loder, the paper discusses the definition of public performance and the liability for copyright infringement associated with these types of videos. It identifies the different parties that may be liable for infringement, including the creator, poster, and website host. It also mentions the challenges faced by video game companies in dealing with Let's Plays and livestreams, such as revenue and public backlash. Taking these insights I have researched on performances in different settings and how the liability reaches out to the different parties involved.

INTRODUCTION

Videogames have evolved from a niche pastime played in people's homes to a mass medium,

with pre-recorded or live content reaching viewers all over the world. YouTube videos and livestreams on platforms like Twitch. tv are examples of let's play content. A Let’s Play is basically a video of a player playing through all or part of a game that may or may not have commentary. 1 Globally, the video game business is worth 90 billion and is continuing to grow. To put it in perspective, that's more than the sum total of all movie and music industry profits. From narrative-driven, interactive, and utterly immersing games like "Genshin Impact" to fast-paced, first-person shooters focused on e-sports like "Valorant" and casual games like "Candy Crush", the business is incredibly diverse. 2 Videogames are not per se copyrightable, but most easily meet the “modicum of creativity” standard necessary to obtain copyright protection as audio-visual works.

In order to succeed in a claim for copyright infringement, the copyright holder must assert he or she has a valid copyright and show that one of the exclusive rights granted has been violated. Let’s Plays and livestreams may violate the public performance right, but the law is not entirely clear on this matter. 3 This is partially because determining who is a performer is difficult in the context of the internet and the identity of the performer can affect whether or not the performance is public. The Supreme Court provided some guidance as to streaming of copyrighted content online in ABC, Inc. v. Aereo, Inc. , but the question of who is initiating the performance of a work, and therefore who will be liable if said performance is public, is still the subject of debate.

4 According to Aereo's findings, public performance is the responsibility of both the service provider, which streams television content, and the user; however, the liability of each party remains unresolved. In the event that the service provider commences the performance, it possesses the capacity to become publicly accessible via transmission to the public. Only service providers that operate as if they were cable television companies can be held liable in this manner. Let’s Plays and livestreams are undoubtedly performances of the underlying videogame and are likely public performances because they are transmitted to members of the public. 5 The creator is a public performer of a livestream or a Let’s Play if the creator intends the performance of the Let’s Play to be public.

The poster and host of a Let's Play or livestream are public performers since they help distribute the content. The host performs a Let's Play

1 Definition of playthrough. PCMAG. (n.d.). https://www.pcmag.com/encyclopedia/term/playthrough

2 Citma. (2023, January 16). Copyright and video games. CITMA. https://www.citma.org.uk/resources/trademarks-ip/intellectual-property-blog/copyright-and-video-games-blog.html

3 Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982)

4 ABC v. Aereo, Inc., 573 U.S. 431 (2014)

5 Legal Information Institute. (n.d.). 17 U.S. Code § 101 - definitions. Legal Information Institute. https://www.law.cornell.edu/uscode/text/17/101

publicly because they provide channels aggregating them to the public like cable TV. A Let's Play or livestream starter is not a public performer because their actions are usually private. Understanding videogame’s evolution from coin-operated arcade games helps you appreciate Let's Plays and livestreams' culture. Copyright law did not initially apply to videogames, but copyright law has adapted to include this new technology.6

A REVIEW OF FAIR USE IN VIDEOGAMES

Livestreams and Let's Plays are general terms that cover a lot of ground when it comes to gaming videos7. The videos cover a lot of ground as a whole, touching on both new and old games. The level of originality in a video can be somewhat different depending on the genre and the game maker. The majority of Let's Plays and livestreams include commentary, and some even include the gamer themselves, either overlaid or side by side with gameplay footage8. When it comes to the internet, these Let's Play creators have sometimes hit the jackpot. The most popular and productive of them is Felix Arvid Ulf Kjellberg, better known as PewDiePie, a YouTuber with more than 100 million subscribers and 29 billion views over

4000 videos9. A large number of these YouTube sensations have evolved into influential

"professional fans" with considerable influence both inside and outside of the videogame business. They’ve made a living doing what started as a side gig—playing videogames while chatting with an audience. The proliferation of livestreams and let's plays has, alas, not been without its share of issues. It is possible for a copyright holder to send a takedown notice to a web "service provider"10, like YouTube or Twitch, under the Digital Millennium Copyright Act ("DMCA"). An "immediate response to remove or disable access to the material that is claimed to be infringing" is required of the service provider. get around some of these problems, YouTube implemented its "Content ID" system, which lets people who own copyrights to their material register it with the site so that they can track how people are using it11. When Nintendo, best known as Mario, and its

6 Dunn, S. A. (1986). Defining the Scope of Copyright Protection for Computer Software. Stanford Law

Review, 38(2), 497–534. https://doi.org/10.2307/1228702

7 BBC. (2017, April 6). Guide: What are e-sports? BBC Newsround.

https://www.bbc.co.uk/newsround/37773832 8 Sawyer, M. (2017, March 29). Three reasons streaming is replacing the let’s play industry. Polygon. https://www.polygon.com/2017/3/29/15087012/streaming-vs-lets-play-twitch-youtube

9 YouTube. (n.d.). PewDiePie. YouTube. https://www.youtube.com/@PewDiePie/community

10 Commentary On Consumer Protection Act. Division Two. (n.d.). https://ncdrc.nic.in/bare_acts/1_1_2.html

11 Google. (n.d.). How content ID works - youtube help. Google.

https://support.google.com/youtube/answer/2797370?hl=en

games were featured in Let's Play videos on YouTube, the company made "content ID match" assertions, which brought the matter to the attention of the videogame industry. The main point made by the creators of Let's Play and its supporters was that Nintendo was taking over the advertising money that they had rightfully earned. Additionally, a few smaller, independent game studios supported the Let's Play creators, asserting that their games would not have achieved popularity had it not been for the Let's Play streaming. Immediate and severe public outcry caused Nintendo to reverse their stance a few weeks later. Nintendo "loves its fans" but recognizes the need to safeguard their intellectual property as an economic necessity, according to statements the corporation issued in response to the dispute, which effectively summarize the opposing positions.12

LEGAL ISSUES IN THE WORLD OF

LET'S PLAYS AND SPEEDRUNS

Many legal questions are brought up by gameplay videos. The contents of gaming videos are copyrightable since the Copyright Act protects audio-visual works, which include the "repetitive sequence of a substantial portion of the sights and sounds of a game"13. Streamers and uploaders of gameplay videos may be violating the copyrights of video game companies, as their actions could be seen as public performances, which the Copyright Act states that only the owners of the rights can approve. The absence of copyright and gameplay video case law at the present time further casts doubt on their exact legal standing. Businesses may not feel compelled to take legal action due to the free exposure they receive from the videos and the potential fan backlash they might face if they try to defend their copyrights14.

Because of this, any lawsuit involving gameplay videos will be a first impression case, and it will most certainly influence how millions of people who make gameplay films and watch them view the video game industry. Meanwhile, other observers have previously examined the recordings' legitimacy in light of copyright laws. These critics agree that gameplay videos are infringing on copyright laws, but they disagree on how to apply the "fair use" theory.

12 Mejia, Sebastian, Fair Play: Copyright Issues and Fair Use in YouTube 'Let's Plays' and Videogame

Livestreams (December 16, 2013) http://dx.doi.org/10.2139/ssrn.2368615

13 Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982)

14 Conrad Postel, “Let’s Play”: YouTube and Twitch’s Video Game Footage and a New Approach to Fair Use, 68

HASTINGS L.J. 1169, 1188 (2017)

The fair use concept, as outlined in Section 52 of the Copyright Act, allows for the unlicensed use of copyrighted content for purposes like study, criticism, and commentary. 15 The amount and substantiality of the original work used, as well as the possible consequences on the market for the original, are among the considerations that determine whether an allegedly infringing work qualifies as a fair use of the original. Examining gameplay footage from a fair use doctrine perspective is the focus of this paper we will examine gaming videos through the lens of the four fair use criteria. According to the analysis, these films can be grouped into several groups based on the amount of copyrighted material they appropriate from the game. The level of fair use protection accorded to each category varies.

While speed run videos are more likely to fulfil the fair use criteria, let's play videos are less likely to do so. The budget advertising for the recorded game is likely to have an effect on the fourth component of the market's reaction to the original games; sales of games with smaller budgets are more negatively affected by gameplay videos. We conclude by outlining potential alternatives to the current system and analysing their pros and cons from the perspectives of game developers and video editors.

FAIR USE APPLIED IN VIDEOGAMES

Video games are artworks that can be legally copied, according to the courts. As the game's author, the developer possesses the "exclusive rights to do and to authorize" the public performance of the game. As a result, the Copyright Act probably applies to the reproduction of the game on Twitch or YouTube as a public performance. So, in theory, video game studios' copyright can be infringed upon by gameplay footage, as they inevitably incorporate copyrighted works. On the other hand, the fair use concept is outlined in Section 52 of the Copyright Act and excludes from infringement certain uses of copyrighted content. Criticism, commentary, instruction, and research are all examples of exempted uses.

16 When deciding whether or not to find someone guilty of fair use, a court may look at four things according to the Copyright Act: (1) the intent and nature of the use, including whether it's for profit or non-profit educational purposes;

15 Mandhyan, M. (2023, July 28). What Is Fair Use of Copyright Doctrine? Copyright-

Indiahttps://www.mondaq.com/india/copyright/1348352/what-is-fair-use-of-copyright-doctrine

16 Id

(2) the copyrighted work itself; (3) the quantity and significance of the taken copyrighted work in relation to the whole; and (4) how the use will affect the copyrighted work's potential market value. Since fair use is meant to be applied flexible, it should be done so on a case-by-case basis. Each consideration must be considered in light of the other, taking into account the goals of copyright law and the principles underlying fair use. The question of whether the allegedly infringing work introduces "new expression, meaning, or message" to the original work rather than just replacing it is crucial to this consideration, according to the Supreme Court's decision in Campbell v. Acuff-Rose Music. 17 The weight of the other three considerations in determining fair usage decreases as the degree to which the secondary work is transformative increases.

The degree to which Let's Plays and speed runs alter the original content is, thus, an important factor in deciding whether or not they are “fair”.

1. FIRST FACTOR – PURPOSE AND CHARACTER OF USE

Since they don't offer any feedback or analysis, silent Let's Play videos obviously don't meet the first requirement. It could be more difficult to tell the difference in Let's Play videos that include player commentary or criticism of the game. 18 To back up the claim that critical Let's Play videos revolutionize the copyrighted game, one commentator used NXIVM Corp. v. Ross Institute. 19 Based on Campbell's theory, it was determined in NXIVM that it was transformative to post copyrighted passages from a handbook online for the purpose of analysis and critique. The quality of commentary in Let's Play videos is often not high enough, according to another commentator. You could make the case that gameplay videos—particularly ones with comedic commentary—are just a way to repackage the game for entertainment purposes, rather of bringing any real change to the game.

Play through videos of real-time strategy (RTS) games like StarCraft, developed by Blizzard Entertainment, serve a same purpose. Real-time strategy games are built for

17 Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013)

18 Craig Drachtman, “Do Let’s Play” Videos Constitute Fair Use? INTELL. PROP. L. SOC’Y: RUTGERS SCH.

OF L. – NEWARK

19 NXIVM Corp. v. Ross Inst., 364 F.3d 471, 475, 477 (2d Cir. 2004)

multiplayer battles and feature military campaigns with armies whose individual units’ players control in real-time. These games are perfect for instructional films because they let players have a lot of freedom to set up their own strategy, combining elements of action games with board games like Risk or chess. Many popular YouTubers, including the RadBrad and PewDiePie, find that their Let's Play videos generate the greatest revenue. 20 Because of the captivating personality of the player and the thrilling spectacle of gameplay, these films amass millions of views. The massive earnings that video sharing platforms like PewDiePie generate are just one more reason why gameplay videos shouldn't be eligible for fair use laws. However, it's possible that many obscure uploaders don't make any money off of their Let's Play videos.

In the same way, speed run videos uploaded to platforms like Twitch and YouTube will likely generate revenue for well-known speed runners, but those uploaded by lesser-known users may not. 21 Speedruns still have the advantage of length flexibility, even with these benefits. The importance of profit in deciding whether the first component weighs against fair usage decreases as the speed run becomes more transformational in comparison to the original game. Thus, unless the commentary lives up to Campbell's requirement of adding fresh expression or meaning to the game, the first factor of purpose and character of use is probably going to be against Let's Play videos.

2. SECOND FACTOR – NATURE OF THE COPYRIGHTED WORK

The original copyrighted work's nature is an issue in determining fair use. Copyrighted content that is "closer to the core of intended copyright protection" is less likely to be used fairly, according to the Supreme Court's decision in Campbell. Works of fiction, due to their inherent creativity, are better able to satisfy this need than works based on true events. A less likely outcome is that works of fiction will benefit from the second component. According to the precedents, this principle is solid.22 Due to the fictitious nature of gameplay videos, the second aspect is typically detrimental to them . In a fair use 20 Stephen Carlisle, The Strange World of “Let’s Play” Videos and the Copyright Problems They Create, OFFICE OF COPYRIGHT, NOVA SOUTHEASTERN U. (Apr. 2, 2015), http://copyright.nova.edu/lets-playvideos/

21 Chris Ip, The Life of An Elite ‘Super Mario 64’ Speedrunner, ENGADGET (Oct. 23, 2017)

https://www.engadget.com/2017/10/23/super-mario-64-speedrun-record-cheese05puncayshun-interview/

22 Twin Peaks Prods., Inc. v. Publ’ns. Int’l, Ltd., 996 F.2d 1366, 1376 (2d Cir. 1993)

examination, the second element could not be very helpful if the secondary work is transformative. Second, the transformational nature of speedrun and RTS strategy films makes them more eligible for fair use protection than Let's Play videos.

3. THIRD FACTOR – AMOUNT AND SUSTAINABILTITY OF THE VIDEOS

The third consideration is the extent to which the original work's copyrighted elements have been extracted. It is important to consider the amount taken in relation to the first factor, which is that it should be appropriate for the intended use. The most significant damage to the "transformative" thesis occurs at this point. In light of what is said in the article from Wired: As an example of a video that does not infringe upon game publisher Majesco's copyright, YouTube's educational fair use page cites a review of the game Drake and the

99 Dragons by user ProJared. There is a lot of game footage and analysis in the 17-minute

review. Videos titled "Let's Play" aren't always black and white. The biggest distinction is the length; for example, a 20-hour video game may easily clock in at 20 hours. 23 This undermines "transformative use" in two ways. Firstly, it goes into far more detail than is strictly required to establish their main argument. Next, the length of the clips guarantees that they will consume not just a significant amount of time but also the "heart of the work" due to how lengthy they are. And as we'll see in the part that follows, by stealing such a significant chunk of the workload, can potentially serve as a market replacement for the labour. Next, we need to know what makes a video game's "heart" in order to decide whether this scenario may be applied to the video game industry. The protected audio-visual components are supposedly the "heart" of a game, according to some.

These critics have come to the conclusion that, in most cases, video games plagiarize too much for fair usage to apply. According to this theory, the plot is the "heart" of the game, so even a short speed run showing the game's peak or finish would be too lengthy. Some say that really playing the game is what makes it special. Videos showing gameplay don't steal the spirit of the game as they don't let spectators control the action. A game's "distinctive expression" is more likely to be found in the gameplay and level design than in the narrative components,

23 Kohler, C. (2015, March 27). Why does Nintendo Want this superfan’s YouTube money? Wired.

https://www.wired.com/2015/03/nintendo-youtube-creators/?mbid=social_twitter

according to these commentators. 24 It follows that the aspects shared by games and other narrative media like movies, TV shows, and novels do not constitute the "heart" of a game. The audio-visual components of a game are not the same as the experience of playing the game, according to several game developers. For instance, 2K Games permits fans to share its copyrighted game content for non-commercial reasons, 157 but forbids sharing the narrative or "no interactive" parts of the game, commonly referred to as "cut scenes. “Only cut scenes that are "part of a larger play-through (or in a narrated 'Let's Play' type video)" are 2K Games' cut scenes eligible for uploading.

That is to say, while the business does not allow the duplication of a video game's cinematic content, they do not forbid the duplication of gameplay, which is specific to the medium and may even be significantly unique for each player. Open-world or "sandbox" games like Breath of the Wild, from The Legend of Zelda, are some examples. 25 The name "sandbox" comes from the fact that players of open-world games have complete freedom to explore the game world anywhere they like. Such games typically include expansive environments that allow players a great deal of freedom to explore at their leisure. Time required to finish Breath of the Wild varies greatly, then, from player to player, based on how much time they wish to spend in the "sandbox.

" The open world design of Breath of the Wild, on the other hand, allows expert players to finish the game with very little global exploration—the current record for a speed run, for instance, clocks in at just under 40 minutes. 26 While this is an extreme case, the speed run video, which clocks in at forty minutes, doesn't show much of the game world, leaving out a lot of the audio-visual aspects that some say are the game's soul.

4. FOURTH FACTOR: EFFECT OF THE MARKET

The impact on the possible market for the copyrighted work is the last consideration in fair use analysis. Both the original and derivative works' effects on the market must be taken into account by the court. The question of whether the secondary work "usurps" the original 24 Taylor B. Bartholomew, Note, The Death of Fair Use in Cyberspace: YouTube and the Problem with Content ID, 13 DUKE L. & TECH. REV. 66, 81-82 (2014).

25 Jose Otero, The Legend of Zelda: Breath of the Wild Review, IGN (Apr. 24, 2024, 2:58 AM),

http://www.ign.com/articles/2017/03/02/the-legend-of-zelda-breath-of-the-wildreview

26 How Long is The Legend of Zelda: Breath of the Wild?, HOW LONG TO BEAT,

https://howlongtobeat.com/game.php?id=38019

work's market, rather than suppressing or destroying it or its derivatives, has been read by courts as determining the effect on the market. 27 To rephrase, the question of whether the secondary work can be sold in place of the original must be considered by the court. When "the infringer’s target audience and the nature of the infringing content is the same as the original," market usurpation happens. Regarding the fourth consideration, the intended viewers of gameplay videos can be divided into two categories: those who are considering purchasing the game and those who already own it but are looking for tips and tricks to level up their experience. 28 People in the first category would see gameplay videos and, depending on their opinion, either be more or less likely to buy the games after watching them.

Even though this might lead to fewer sales, rather than gameplay videos taking over the video game industry, it could have the opposite effect, depending on how viewers react to the videos i. e. if viewers dislike a game after watching a video, they are less likely to want to watch more videos of it and buy it. Fourth factor analysis does not take into account whether secondary work suppresses or ruins the work. However, just because a spectator finds a game interesting doesn't imply she won't want to give it a go herself. The video could really persuade her to purchase the game, which would be great for the original creators' bottom line. 29 Those in the second category may find gameplay videos useful in addition to or in place of strategy guides found in books or on websites like GameFAQs, where users post questions and answers and construct their own walkthroughs.

Since these people already own the games they want help with, watching gameplay videos also wouldn't hurt sales of the original product. Although the results of the fourth component are mixed or even positive for both sorts of films, speed runs still benefit from them more. The market for the original game would benefit from viewers of Let's Play videos buying it, but it's also possible that they'd be satisfied enough without buying it, particularly if the game had a strong focus on story and progressed in a linear fashion. Conversely, viewers of speed run videos either already own the game or have finished it and are just looking to improve their skills for when they play it again. So, it's safe to assume that speed run videos wouldn't have much of an impact on the original games' sales. Whatever the case may be, third and fourth factors have taken a

27 Blanch v. Koons, 467 F.3d 244, 258 (2d Cir. 2006)

28 Alex Stargame, The Past, Present and Future of Video Game Streaming, MEDIUM (Oct. 22, 2018)

29 Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282, 288 (S.D.N.Y. 2013)

back seat to first and second factors in more recent fair use analyses. Also, letting people be creative while using someone else's work is one of the reasons for fair use. Videos of speed runs reveal how serious players find bugs in the code and adjust the character's movement to complete the game faster and faster. They help you identify speed runs from regular game videos, but they can also help you rate each speed run based on how much it "transforms" the original game

CONCLUSION

Livestreams and Let's Plays are recordings of people playing videogames with the intention that others can see them. As a result, they are typically performed in front of an audience. A person who creates a livestream is engaging in public performance. Whenever a Let's Play is made with the intention of being watched by the public, the creator is considered a public performer under section 230. Because they are involved in the process of content distribution, the person posting a Let's Play or livestream and the person hosting the stream are both considered public performers. Like a cable TV provider, a Let's Play host makes their channels available to the public, making the host a public performer of the underlying gaming.

The weight that Let's Plays and livestreams may put on videogame developers is real, and holding creators, posters, and hosts accountable for their public performances won't help much. Developers nearly have no choice but to permit the usage of their games in Let's Plays and livestreams due to the public's favourable attitude toward these forms of content. The creators of video games can utilize this liability schema to stop their games from being used on livestreams and Let's Plays without their consent if attitudes change. The question of whether infringement is present simply does not have a clear solution. Given the subjective nature of fair use considerations, the same holds true for such an approach.

Although these programs often incorporate elements from the original works, this could be justified based on the second fair use criteria, which considers the purpose or character of the secondary use, or the fourth factor, which considers the lack of cognizable market harm. To assess these concerns in light of the exponential evolution of technology, a more malleable legal standard is required, one that permits commercial uses, particularly when such uses 30 Performer’s rights under Indian Copyright Law. Maheshwari & Co. - Legal Consultants. (2023, September 11). https://www. maheshwariandco. com/2023/09/11/performers-rights-under-indian-copyright-law/

strengthen the market for the original. The very creativity that copyright law aims to encourage could dry up if this does not happen.

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