Playing Fair: Youtube, Nintendo, and the Lost Balance of Online Fair Use

Authors

Natalie Marfo

First Page

465

Abstract

Over the past decade, YouTube saw an upsurge in the popularity of “Let’s Play” videos. While positive for YouTube, this uptick was not without controversy. Let’s Play videos use unlicensed copyrighted materials, frustrating copyright holders. YouTube attempted to curb such usages by demonetizing and removing thousands of Let’s Play videos. Let’s Play creators struck back, arguing that the fair use doctrine protects their works. An increasing number of powerful companies, like Nintendo, began exploiting the ambiguity of the fair use doctrine against the genre; forcing potentially legal works to request permission and payment for Let’s Play videos, without a determination of fair use. As courts proved incapable of solving this issue, the copyright nature of Let’s Play videos remains in question. This Note analyzes how a court could resolve a case concerning Let’s Play videos. This Note proposes that a fair use analysis regarding Let’s Play videos shows no conclusive determination. In turn, this ambiguity leaves Let’s Play videos at the mercy of copyright holders. With the introduction of the “Nintendo Creators Program,” Nintendo is overlooking the fair use defense and enforcing non-negotiable contractual obligations, an act which disregards judicial precedent and undermines the spirit of fair use. Changes to YouTube’s policies are necessary to protect Let’s Play users and content creators like them.

Recommended Citation

Natalie Marfo, Playing Fair: Youtube, Nintendo, and the Lost Balance of Online Fair Use, 13 Brook. J. Corp. Fin. & Com. L. 465 (2019).
Available at: https://brooklynworks.brooklaw.edu/bjcfcl/vol13/iss2/6