Chesaning, MI asked in Copyright, Gaming and Intellectual Property for Michigan

Q: Is it illegal to make content using video game footage/pictures?

I want to make video game content like YouTube videos or screenshot pictures. Like game playthroughs or something. I also want to be able to monetize somehow, like with ads, affiliate marketing, or linking to Patreon.

But I'm worried about getting in trouble with copyright or getting sued or something. I see other people doing it on YouTube and other places, and they seem to be making money off of it too. Is it legal to do things like that? If it isn't, why do so many people do it and get away with it? I've read that video game companies don't pursue copyright claims on things like YouTube videos with their content. Is that true?

Also, what about video game mods? Do I have to get permission from the mod creators themselves if I make content with their mods in them? I read that, technically, video game mods are copyright infringement on the games themselves, so mod makers don't have any copyright rights. Is that true?

2 Lawyer Answers
Erik Špila
Erik Špila
Answered
  • Intellectual Property Lawyer
  • Senec, Slovakia

A: Dear Creator,

thats a very interesting question and I will gladly try to answer it.

At first, in general, it is legal to create a gameplay videos from video games and post them on youtube and then monetize your channel. There are some circumstances when this does not apply such as when you are beta tester and are bind by the non-disclosure agreement. Also you can not say that the developer of the game supports your channel or it shall not be implied from your channel content/information, if it is not true of course.

If you are not sure whether or not you can or can not use and monetize the content you create by making gameplay videos for instance, there is always an option to contact game developer support and most of them will guide what you can, or can not do.

I have had an case with YouTube creator of Amazon game title and for instance this company has a very good information about what you can, or can not do right in their policy and terms of use.

About game mods I would say that a mod itself is a new work and therefor an author of it should have copyright to it whether he used a "default game" code or not, in order to build it. However to answer this, I would need more information to answer you.

If you have any further questions regarding gaming/creator law, or registering your own brand contact me anytime.

1 user found this answer helpful

Steve Charles Vondran
PREMIUM
Steve Charles Vondran
Answered
  • Intellectual Property Lawyer
  • San Francisco, CA

A: My firm represents several large YouTube channel creators and here are a few general tips I can share with you:

1. when using a third-party video clip in your video, make sure to use only the "minimum necessary" to help tell your story. Most copyright owners do not object if you use a clip of theirs for comment, criticism, newsworthy events, etc.

2. Give them credit (attribution) in the description part of the video, or at the end of the video for example. Provide a link to where people can find them.

3. If you are going to use two or more videos from the same company I would consider asking for permission. Check their website - some will tell you what you can and cannot do.

4. You can use a fair use disclaimer on your video which (while not fool-proofing you for copyright infringement or DMCA takedown claims) they can let the artist think about fair use before issuing the takedown. Note: in the 9th circuit (California, Arizona, Washington, Oregon, etc.) court may demand proof that you considered fair use (four factors) before taking down the video).

5. If you are using photos, make sure to use only a short length of the photo, and make sure it is being used to tell your story (comment, criticism can be protected under the United States fair use laws).

6. When in doubt, you can seek out a copyright infringement "fair use opinion letter." If you are doing a bigger project (ex. one that generates millions of views, monetizes, or is created for public distribution) it can be all the more important to do this. Otherwise, you can apply the four "fair use factors" and figure if you believe it would be fair to use if YOU were the creator/copyright holder.

NOTE: There is now a "small claims board" in Washington D.C. where infringement claims can be brought for up to $30,000. So, be careful in this area, I can tell you first-hand there are many copyright trolls out there.

Good luck.

Attorney Steve®

1 user found this answer helpful

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