How to Follow the Doctrine of Fair Use in Copyright Law with Video Games

If you’re familiar with the doctrine of fair use in copyright law, you’re probably aware that using other people’s content online without their permission is technically illegal, unless you transform the material in some way.

However, what many creators fail to recognize is that video game 🎮 play content must also abide by the doctrine of fair use.

In reality, broadcasting yourself playing video games on YouTube, Twitch, or any other social media platform without some sort of transformative aspect is usually in violation of copyright law. 

More specifically, in most cases, game developers have not ❌ provided written consent, or license, for us to post their content.

As a result, these developers have the opportunity to hit YouTubers, Twitch users, and all social media creators who post their games with copyright strikes at pretty much any moment – and no one is safe.

For example, back in 2017, developer Campo Santo filed DMCA takedown notices against PewDiePie when he used a racial slur during his gameplay video of Firewatch. Despite Campo Santo claiming on their website that users may post videos of their games, the developer’s DMCA takedown was made in an effort to disassociate ⛔ the company from the YouTuber.

In most cases, such as Campo Santo’s, if a game developer decides to file a takedown notice for any reason, they will almost always have the legal right to do so.

That said, barring extreme circumstances such as PewDiePie’s unacceptable speech, most game developers will leave your videos alone. 

In fact, video game streamers are almost always helping game developers by posting their videos! Think about it: most of the time, your gameplay videos are actually bringing in more fans and making the games more popular 👍.

As a result, by exercising silence 🔇 and turning a blind eye to these copyright violations, developers are – for the most part – giving their implicit consent to game streamers. In other words, you should be totally fine to continue your gameplay videos.

However, while I encourage my clients to continue posting video game content until a game developer tells them otherwise, I also encourage them to utilize the doctrine of fair use. 

While there may not be a reason to eliminate gameplay videos just yet, creators should be doing everything in their power to minimize their risk of copyright strikes. Anyway, while one copyright violation isn’t a huge deal, you do NOT 🙅‍♂️ want to accumulate multiple, especially within 90 days of each other.

Therefore, in order to follow the doctrine of fair use, video game livestreamers and creators should read up 👀 on social media terms and conditions before posting gameplay videos. 

For example, you can find a description of fair use and copyright laws in YouTube’s video game and software policy

While YouTube claims you do not need a game developer’s permission to live stream or post a Let’s Play video, it also mentions “Without the appropriate license from the publisher, use of video game or software user interface must be minimal.” 

Additionally, YouTube’s policy states that video game content is allowed as long as it is accompanied by transformative material such as commentary 💬, critique, education, or reaction. 

For social media creators who often use video games in their content, be sure to utilize these strategies to follow the doctrine of fair use in copyright law and avoid copyright flags 🚩:

✖️ Never post a game play video without commentary

Whenever you post a video of yourself playing a video game, you must include some sort of commentary about what you’re doing or seeing.

This commentary can include your likes and dislikes about the game, news 📰 about the game, poking fun at the characters, or teaching the game to others – whatever you want! 

Ultimately, remember that YouTube’s policy does NOT allow videos of gameplay without commentary, critique, teaching, or reaction.

✔️ Use as little of the game as possible

The best way to avoid copyright strikes on your gameplay videos is to make sure you are the star 🌟. In other words, your comments, critique, and teaching should be the highlight of your video, or the main attraction to viewers. 

At the end of the day, your goal should be for viewers to watch your videos because they want to hear your commentary, as opposed to simply watching game play.

✖️ Never post spoilers or plot twists

I always advise my clients to avoid the “heart ❤️ of the matter” when relying on the doctrine of fair use. 

For example, an influencer using a music 🎶 clip in their Instagram post is much better off including a few seconds of a verse than the main chorus.

Similarly, game players should never include spoilers in their social content. Let your viewers discover the hidden secrets themselves – perhaps you can simply help them get there.

Unfortunately, the doctrine of fair use in copyright is a bit ambiguous when it comes to video games. However, as long as you keep your content user-friendly, appropriate, and transformative, you shouldn’t face conflict with video game developers 🤷‍♂️.

Ultimately, if you conduct yourself in a manner that developers would be proud to associate with their games and brand, they will be happy to let you continue your gameplay videos. 

This way, you can continue making money 💰 for the both of you! It’s a win-win situation.