When It's Not Fair Use | Copyright & Plagiarism on YouTube
‘Fair use’ law is the backbone of the vast majority of gaming focussed channels on YouTube, so it stands to reason that there have been a whole lot of videos explaining just what fair use is...but unfortunately, sometimes it’s really not fair use.
Admittedly one of The Retro Perspective’s earliest videos was subject to a copyright infringement grey area. The video ‘Is Lara Croft’s Character Taken For Granted?’ used music by Nathan McCree from various Tomb Raider video games throughout. It was before I had composed some of the tracks we use today; at the time I thought it was pretty effective to use music from whichever game was being explored in a particular video and I planned to continue this practice.
An argument could be made that this video still adheres to fair use law because although I don’t comment on the music itself, the music is a part of the game being commented on and I attempted to use it in a transformative way to present a certain mood for the video. So why didn’t I continue using video game soundtracks in our videos? Although I do believe that this should fall under fair use, I also think that it’s beneficial for a channel to use at least some of its own music because it brings a bit of character and brand recognition to a channel. Also, YouTubers that can’t create their own music are in a great position to bring exposure to composers or bands who might be interested in contributing music and in turn, bring exposure back to the channel by introducing music fans to it. It’s just like doing a YouTube collaboration, only across different disciplines.
Unfortunately, channels that choose to use video game music in their videos tend to lean towards copyright infringement rather than fair use. This is because they often use music from a variety of different games that have nothing to do with the topic of the video and this even extends as far YouTubers making videos about topics that have nothing to do with video games. Final Fantasy composer Nobuo Uematsu, who is already getting shafted by Square Enix using his music willy nilly in all of their millions of spin-off titles, also has to deal with YouTubers using his music in their anti-feminist videos. Now, let’s remind ourselves that ‘fair use’ is the use of copyrighted work for the express purposes of commentary, critique or parody of that specific work, so I think you’ll agree that this is categorically NOT fair use...but hold on to your chocobos folks because it gets much worse from here.
When it comes to video footage of any part of a video game, the exact same rules apply on YouTube. Yet many YouTubers, from video game commentators to vloggers, use footage of video games excessively in tandem with commentary that often has nothing to do with video games whatsoever. Around the time Just Cause 3 came out I didn’t watch a single video about the game itself but I saw so much footage of it from non-gaming YouTuber’s I feel like I’ve played the entire game. Often the YouTuber won’t even note down in the video description which games they are using video footage from and only on one occasion have I come across a video where the YouTuber clearly stated that they were using footage from a game for the purposes of giving it more exposure. I feel this is perhaps the only reason someone can justify using completely unrelated footage in one of their videos.
Some of the bigger video game outlets like IGN feel they are entitled to re-upload game trailers and imprint the video with their own watermark as if they had any claim to the footage at all but certain YouTubers also do the same with no commentary or critique. Basically, they are trying to siphon views to their channels off the backs of recognisable brand names. Perhaps this is a justifiable retaliation to the monopoly the mainstream gaming media hold, IGN can easily secure an interview with a big name for instance but I recently noticed a YouTube video that had taken 90% of its content from an IGN interview, with only 10% being commentary. As much as I dislike IGN, it was their studio, cameras, lighting, microphones and time that made that interview possible. So to host that work as a video on your own channel is once again a blatant breach of copyright.
Finally, there’s perhaps the worst offender and I did want to refrain from naming names in all this...however, this person is pretty much the self professed king of fair use. Jim Sterling, despite being on the receiving end of a fair few copyright claims where he was indeed well within his rights to use the footage in question, has since the beginning of his career in journalism had a very ‘could not care less’ attitude towards copyright law. As well as breaching copyright in many of the aforementioned ways, he also proudly uses his copyright deadlock method in many of his videos to make a point about YouTube’s lazy method of flagging copyrighted videos by purposefully and paradoxically breaking copyright. Using a mixture of mainstream pop songs and Nintendo footage, Jim puts two companies in competition with each other to see who is entitled to earn the ad revenue from his video.
Many people believe the copyright deadlock to be a clever way to show YouTube the error of their ways. The reason I don't think it's as clever as it seems is that if you really think about it, Jim is knowingly breaking copyright law to make a point about fair use. What would be really clever is if a copyright deadlock was formed completely from footage that actually was fair use, I'm sure it would be possible. Meanwhile, Jim is giving youtube a legitimate reason to penalise him and his channel with justified copyright strikes and feeding the prevailing attitude that for YouTubers ‘fair use’ means we can use whatever we want regardless of what the law clearly states.
Back when Jim’s show The Jimquisition first started the majority of the videos were underscored by ‘Jesters of the Moon’ by Nobuo Uematsu. The Escapist, the outlet that hosted The Jimquisition realised that this was not fair use and requested Jim change it, so he asked Binding of Isaac composer Danny Baronowski to write a piece for the show. However, he continues to use copyrighted material in his videos and recently has taken his disregard for other people's intellectual property one step further when he commissioned Carl Catron to write another new track for his videos. This track ‘March of the Sterling Jester’ is outright plagiarism of Uematsu’s Jesters of the Moon, they weren't even subtle about it and with Sterling's history with the track, it’s almost Jims way of trying to use Jesters of the Moon, without actually getting permission or giving credit for it. Of course, many people will see this as blowing things out of proportion, I understand that, and no one knows whether this would legally be plagiarism. As a Nobuo Uematsu inspired composer myself though I take issue with this blatant creative bankruptcy and disregard for his work. Not to mention the little known fact that even performing or recording a cover of a copyrighted work and profiting from it is not strictly legal.
March of the Sterling Jester(Original Mix) by Carl "Sax Dragon" Catron
I am no huge fan of copyright law myself but there is a distinction to be made between what protects the big corporations and what protects the individual. I certainly think we as YouTubers should be a bit more measured in our use of footage and music because at the moment, using fair use as a catch all excuse to do whatever we like isn't doing any favours to those who would like to forge a career on YouTube.