Stopping Creativity with the Creators Program

Recently, Nintendo launched its “Creators Program” where you can share ad-money for Nintendo-related videos you upload on YouTube. You can either submit your entire channel and receive 70% of the ad profits or submit individual videos and receive 60% in ad profits. Previously, Nintendo had the option (and oftentimes did) claim copyright and either take down a video or receive all the profits from ads. This new move seems fair…in theory. But Nintendo is going down a dark road that will ultimately stifle creative voices and shoot themselves in the foot.

In college, I used to work on this show called Video Game Hour Live (http://www.texasstudenttv.com/show/videogame-hour-live). As the name suggests, we would go on TV and play video games live for an hour. Of course, video games are copyrighted material, and we ran ads in-between breaks without splitting the proceeds with video game publishers. How we managed to legally play games on live TV is through commentary. Basically, since we gave our opinions as the game was played, it functions as a review and was protected under fair use.

James, Jordan and I discuss the intricacies behind "Rugrats Scavenger Hunt"

The live show we had on VGHL is very similar to the many Let’s Play videos on YouTube, which are the targets for Nintendo’s copyright claims. However, there is a caveat that might not protect Let’s Play videos like an hour-long show. In determining fair use, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” is taken into account (http://www.badmovies.org/sideshows/articles/fair-use.html). In a 40+ hour game, an hour wouldn’t necessarily be a substantial portion. But Let’s Play videos usually consist of the entire game. Even with commentary, it might be harder to argue for fair use when it consists of the entire copyrighted work.

So what about video game reviews? Video games are a visual medium, so video reviews are the most appropriate way to accurately judge a game. Reviews are protected by fair use because they are by definition a critique of a copyrighted work. Sites like IGN make money by creating video game reviews, but would they have to share profits with Nintendo?

Let’s use my previous review of Kirby’s Return to Dreamland for example. When I worked there, VGHL didn’t have plans to monetize online videos, but could we without Nintendo taking some profits away? In that review, I gave my opinion accompanied with gameplay. When I discussed how I enjoyed the Super Abilities, I had gameplay showing off the Super Abilities. It’s the very definition of a review, but I do use visual-audio content from Nintendo, which means my review can still be subject to their copyright claim when uploaded to YouTube. Does that mean IGN will now have to share profits with Nintendo if they review a Nintendo game? And if not, what unwritten rule makes them exempt but not a smaller reviewer? The Creators Program does not have an adequate answer to deal with reviews.

Many reviews use gameplay footage. How does that tie in to the Creators Program?

The biggest issue content creators will find is the list of games that qualify for the Creators Program (https://r.ncp.nintendo.net/whitelist/). Many popular series, such as Super Smash Bros and Pokémon, are entirely excluded from the program. Any videos containing these games will automatically be claimed without even a chance to share in the ad profits. You might argue that the list will be updated with new games, but I’m pretty sure no plans exist to release a new game on the N64. Out of the entire N64 library, only 8 qualify!

Super Smash Bros Nope!

Instead of looking at making ad-profits in the short-run, Nintendo should allow content creators to remain unhindered to improve sales and impressions in the long-run. Just look at death-stare Luigi! These fan created videos not only showcased the replay feature of Mario Kart 8, but also drove to higher sales. Other game companies have successfully improved sales and their reputation by capitalizing on user-generated content rather than quashing it. Square Enix released their own template for Final Fantasy XV’s car memes and EA published more copies of Skate 3 after it was featured on PewDiePew’s channel. Encouraging fan creations is key for continued interactions with brands.

My personal favorite FFXV car meme. Screenshot courtesy of Lythero (https://www.youtube.com/watch?v=MHpsty9LJb4)

I don’t personally plan to monetize Gaming with Smiles, but I feel Nintendo is making a serious misstep and hurting their fanbase. Fair use is already a grey matter, and enforcing it on a case-by-case basis will easily become a legal headache and a PR nightmare. Nintendo certainly isn’t the only company that enforces copyright claims on video game content, but it’s apparent they still haven’t learned their lesson from previous copyright claim fights. Many YouTubers I frequent put considerable amount of work in their work, and it’s a shame the company these content creators support turns its back on them.