A scene and song occurs in a video on YouTube of me recording myself playing a Nintendo Video Game is this fair use? 2 Answers as of May 07, 2013

I recorded myself playing a Nintendo Video Game with a live voiceover. The entertainment value of such a video is commonly known as a "Let's Play". In two of the videos, YouTube has informed me that parts have matched copyrighted content. In one video it highlights a cut scene within the game, and claims it was a recording done by IGN. This isn't true because I recorded this myself on my own TV. Is it from the same game they did? Yes, but why doesn't it recognize that mistake? In another video Nintendo recognized the background music. But I am just playing their game... you're going to hear the music in it. Many before me have created much similar content, and with much higher quality. I feel this is a mistake. I don't want to have strikes on my account for something such as this, so I would like to dispute these claims. Is my usage of the game protected under the fair use policy?

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Lawyer for Indie Media
Lawyer for Indie Media | Sue Basko
There are follow-up questions I would like to ask you before I answer. Since that is not possible, I will give my best reply. IGN is a company that runs game fan sites, with promo and reviews. Is it IGN that is making the copyright claim? If so, they may be trying to cut out others who make fan or review type videos for the games they enjoy. What is considered Fair Use is not set in stone and is highly variable on a case to case basis. It sounds that if your video is for the purpose of analysis or review of the game, you should be able to claim fair use. Your video of the game is possibly unique, since every play of the game is likely to be unique, and therefore, there are endless game play videos that could be made. Your video does not lessen the market for the game and likely increases it. But it may be IGN claiming you might lessen their market for their gaming fan site, which seems equally not true, in my opinion. If the game video shown on your video is not too long, you can certainly make a solid claim that it is Fair Use. Whether it will be accepted as that or not is questionable. This is hard to predict and if it ever ended out in court, there is no way of telling what might happen. But making that claim with Youtube certainly seems very valid to me.
Answer Applies to: Illinois
Replied: 5/7/2013
Sebby Law Office
Sebby Law Office | Jayne Sebby
You have not provided any evidence that your use of the video game qualifies for a Fair Use defense to the claim of copyright violation. Consequently, none of your recordings should be allowed on YouTube because they all violate copyrights owned or licensed by Nintendo. The fact that others have done the same thing or that others had higher quality recordings doesn't matter. Theft is theft, whether it's recording someone else's work off the TV screen or stealing the game itself from a store.
Answer Applies to: Nebraska
Replied: 5/7/2013
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