Who deserves ad revenue when games are streamed?

Since cancelling FEZ II and leaving the games industry, Phil hasn't really been out there. Sure, he has tweeted here and there but not to the usual amount he did in the past that would make headlines making him out to be a huge dick, racist hipster but just over a day ago he returned to say this:

Tbh though, I do feel like there is something to what Phil posted when the likes of Pewdiepie make $4 million a year. If a go to a gallery and take a photo of a painting and then sell that photo as postcard or whatever, am I then fully entitled to that profit? I did go to all the trouble of taking a photo after all.

EDIT: I thought I'd go ahead and change the title of this thread. Yes, it was Phil's tweets that brought this discussion to ahead, but it is a topic that's much bigger and more complex than him alone.

He's right. Remember the hassle Screened had to go through to do those live streamed commentary events? Remember how RiffTrax can't give you the movie as well because they don't own it? Same deal here. I think there are easier solutions to this than what those two groups have to go through, but to my mind what he said is totally analogous to that.

Yeah, he may have a point, especially after I read about that astonishing $4 million a year youtuber claim.

The value of a game is in the playing of it. Watching a game is like reading a plot synopsis for a movie; you're aware of what happens in the story, but you're not experiencing it the way it was designed to be experienced. Much like how a bootleg concert recording gives you a close approximate representation of what it was like to experience that concert, yet it is no way the same as experiencing a concert. You are witnessing someone else experiencing the game, but you lack the agency that comes from having a controller and playing it, the difference between having tactile feedback and not merely witnessing someone else's experience.

The main people who need to worry about Let's Plays and Quick Looks are people whose games are more fun to watch than actually play.

If we are going to continue down this streaming path, then it would be best for everyone if Publishers acquiesce that steaming is a thing and work out some way for Streamers to either purchase streaming rights, or share revenue. The current system right now is totally bananas.

I think there's merit to it but it also seems stingy to me.

@brodehouse: Fez in particular is an interesting case because the joy of that game is not merely the playing of it, but the experience of discovering that world for yourself, and seduced by it's mysteries. An effect which is ruined if you see somebody else experience it first. The difference in playing and watching is not always merely agency. Agency can be reproduced, that sense of discovery and accomplishment, having ventured out into the game on your own, cannot be. It's like the difference between knowing a plot twist and not knowing it. If you know the twist ahead of time you may still enjoy it, but you won't be invested in it in the same way you would be if you experience it for your self.

How about all of the free advertisement that YouTube videos create?

All of that is beside the point whether it's even accurate or not. People posting Let's Plays and the like to Youtube are creating works that are dependent on the works of others. Mystery Science Theater 3000 had to get the rights to the films they wanted to use in order to make episodes out of them, and those rights only extended to the networks on which they were broadcast. That's why none of the Comedy Central episodes ever aired on the Sci-Fi Channel, and it's also why they can't just release huge box sets for each season. The rights for each film need to be renegotiated by the DVD producer. At some point, the owner of the original work that MST3K is using is getting paid for the use of their film.

And frankly, if a guy like PewDiePie is making four million a year largely off of works produced by others, then the producers of those games that earned him that money have a legitimate argument to make. If someone makes money off of videos of Fez without permission to use it for profit, then Phil Fish is within his rights to protest that, or to request a cut of that profit.

I think a happy medium between his philosophy and what these apparently rich YouTube goofs are doing would be ideal. Good luck figuring that out.

In that case, why monetize those videos? Enabling YouTube ads is a voluntary action. By turning those ads on, they are knowingly making money off of that content, even if that content is based on property that is not theirs.

Yes, the "split it with us" model that Nintendo is using should be used by all developers of all games.

If I'm making some sort of Youtube video and want to add in someone else's music that I don't own the right to, Youtube isn't gonna let me make money out of it.

So if I make a Youtube video featuring video and audio from a video game that I don't own the rights to, Youtube shouldn't let you keep 100% of the adsense money you're generating. You're lucky to be making that money in the first place.

Well I don't think it's stealing and it certainly isn't piracy. Watching a game is not the same as playing it, unlike watching a movie which is just like well watching a movie.

But yeah devs should probably get a cut if the work is being done for profit as there is a definitive derivative nature to the work. Hard to say without some court case, this is a grey area regarding Fair Use without a whole lot of legal precedent.

The movie comparison holds no water. Movies are made to be watched. Games are made to be played. You can watch a stream. You cannot play a stream (yet).

It's an issue that has no easy solution. It's why Youtube has allowed copyright holders, and those claiming to be copyright holders, to remove any ad revenue videos down. Fair use needs to be defined and defined soon.

Twitch Plays Pokemon would disagree with you. That being said, it's still making money off of intellectual property that is owned by another party. Interactivity has nothing to do with this argument.

Well, isn't that where it all gets grey? I mean, with a video of just the game, without commentary, editing, or anything, then I suppose that isn't fair to developers.

Although, people enjoy the personalities that play these games. When Pewdiepie screams "A pig is raping me" as he swings a pig around in Amnesia, that creates a somewhat original piece of content. The quality of this content is arguable, but when I play Amnesia, my experience doesn't involve that personality commenting over it, thus making it Pewdiepie's own content in a way.

It's still content that is entirely dependent on Amnesia, and by extension the people that made Amnesia. Whether commentary is overlaid or not, it is still using someone else's work to make money.

Well...he's not wrong.

So are we saying that every time Giantbomb puts up a QL of a game, the devs should earn a percentage of GB's revenue? Or are we just being hypocrites because fuck Pewdiepie?

The only time I feel it seems a bit dirty is with story driven games with little gameplay. Otherwise just watching a game be played is nothing like playing it, which is what you buy games for. If anything it's free advertising for the developer.

I make games and I see no reason why I should make money if my games were streamed. I would just be happy my games getting attention.

@hailinel said:

Yes I suppose there is Twitch Plays Pokemon. That's a weird anomaly though. And while I don't really care where this money ends up going, I think interactivity is a key part of this discussion. The creators of ip have nothing to do with the way you play a game. That is a creation all your own. People don't watch speed runners or e-athletes (or whatever the hell they're called) because of the intellectual property, they watch it because of the talent of the person playing. That's the players work, and companies reaping the profits of that work are no better than players who make money using the companies creations.

If that is true, then Quick Looks fall under the same category. As well as E-Sports, I mean, the people making millions of dollars playing DotA2 at the International wouldn't be doing it without the existence of DotA2.

That IS an extreme example, but I feel that if what Phil Fish says became a reality. The result would be far more devastating, and affect those who don't deserve to be affected by it. Imagine if stream operators for a SF4 tourney had to pay Capcom a portion of their ad revenue. It's the players and commentators that make the stream entertaining. The game is just a tool.

If I have a stream of myself playing a Dean guitar, should I be paying ad revenue to Dean?

This slope gets real slippery, real fast.

The main draw of a game is to play, not watch. The main draw of a Let's play is the commentary, not the game itself. If a playthrough is uploaded in it's entirely without any commentary or additional content of any kind from the makers of the video then maybe devs or publisher might have a (small) point but even then it brings thing back to my first point which is that the main draw of a game is to play it, not watch. In all likelihood if someone derives as much fun out of simply watching a game than playing it, it seems unlikely that this person would buy the game to begin with.

But there's also many more things people often don't consider. The free publicity these let's play provides for publisher is gigantic. People get hung up on Pewdiepie generating 4 millions in ad revenue last year but don't consider how much his videos generated in additional sales for the games he played. I'd be very interested in seeing actual data on this and would be willing to bet it's a lot more than the 4 millions he made himself. Of course publishers are probably not interested at all in this data coming out if it is indeed the case that they end up making more money thanks to this free publicity than what the video makers make themselves because this alone would entirely sink their demands in the public's eyes.

If this is indeed the case it's the publishers and developers that should be paying people producing these videos. Afterall they pay for advertisement everywhere else. Maybe they should consider providing the games free of charge to select let's players and licensing those videos for a percentage of the ad revenues they generate.

When creating a video series of any kind about a game where you add commentary the game becomes a tool. A tool you paid. You don't pay the tools manufacturers every single times you use their tools while renovating your home. It should be the same with games.

I am 100% sure that the industry stand to lose a lot more from trying to get a cut from this. This would undoubtedly shut down most of the smaller channels. I'm not an economist but it seems to me that a percentage of nothing is not as profitable as free publicity.

Events like The International are supported by Valve (the people behind Dota 2). Officially sanctioned competitions that are streamed aren't the same thing as monetized streams or recordings of games that are produced without the consent of the IP owner.

And yeah, this also affects Quick Looks. I personally don't have a problem with that.

Let's say a game comes along where the narrative drives the experience (I really enjoyed the combat in TLoU while everyone else it seemed didn't, that's a different discussion). This game was made by hundreds of hard working people employed by Naughty Dog and Sony. Somebody uploads the entire game on Youtube, gets over a million views, and earns ad revenue for it.

He makes 100% of the money from the video (after Youtube gets paid).

Sony and Naughty Dog (who created every single second that is in this video) has made $0.00 from this video.

The idea of "you can't play a video" is a wrong one. It's wrong by over a million views in this one piece of proof. Unless every single person who watched this went out and bought the game, then Sony and Naughty Dog are not being paid at all from a lot of people who are experiencing their product in one way or another.

Here's another thing to consider. When Major League Baseball, the NFL, or other sports leagues broadcast their games on TV, there's always a notice at some point during the broadcast that the footage of that broadcast is the property of the league. Not the property of the players on the field, or the teams. It is property of the league itself. If we were to apply that analogy to E-Sports, then footage of Street Fighter IV tournaments would be property of Capcom, because Capcom, as the producer of the game, would effectively be the league. If it were a Smash Bros. tournament, it would be property of Nintendo. If it were League of Legends, it would be Riot.

@starvinggamer: GB is a website owned and operated by CBSi, not a bunch of guys enabling ads on a youtube page, for one. That lends them a certain amount of legitimacy and authority, even if it is a somewhat silly website at times. It also means that they have agreements and relations with the developers and publishers of the games they cover and, along with that, certain restriction such as NDAs, review embargoes, etc. They are professionals (yes, in the context of a video game website that is fairly silly, but they are in fact paid for what they do) with years of experience operating within the industry. Is the meaning and significance of that changing? Absolutely. And it will continue to change but, at the end of the day, what GB does is worlds apart from your average youtube streamer, regardless of the amount of money being made.

Quick Looks do fall under this category, but Giant Bomb is a website that has their own ad revenue and doesn't have to go through Youtube or advertise within the video. They also have a subscription model that block you off from seeing videos produced, so they aren't particularly affected by this issue.

Do they? Phil specifically says putting "ALL" of Fex online means he deserves a portion. He's essentially arguing for fair use. Albeit not a great and well thought out argument, more an emotional and mostly angry one.

hmmmm, I'm reminded quickly about Total Biscuit experiences with smaller developers and their bad games that they demand him to remove it quickly as he's mocking their games.

this kind of reaction to what he has to say is completely unwarranted.

he's prone to somewhat excessive emotional outbursts, but i have to agree with him on this point. i get a lot out of watching my friends or the bombcrew playing a game, truth be told. yeah it may not be the full experience but i get to see the story, react at the elements in the game, and in the case of friends am pretty much playing the game cooperatively with them (giving suggestions, commenting on a certain mechanic/design choice, etc). definitely full playthroughs of games with sparse to no commentary should be subjected to this sort of regulation.

it may be hypocrisy to say that GB is exempt from these considerations, but they put in more effort and their personal spin than the typical streamer, and have a site devoted to multiple kinds of content from different games, and approaches to said content. plus they only sporadically show full playthroughs. but hey, if they have to start giving the devs a cut to show their games it may be a bit of a bitter pill to swallow, but so be it. their industry ties and promotion of various titles preclude this, i would say.

I can sort of see an inkling of a point there. I'd probably be more receptive to it if literally any human other than Phil Fish was espousing it, though.

I guess when a game is mostly or entirely narrative driven the comparisons with film are more justified. Watching a full playthrough of The Walking Dead is obviously a closer experience to the game itself than watching ten hours of Battlefield 4 gameplay. Ultimately, you'd have to draw a fairly arbitrary line somewhere, and no matter where you draw that line you're going to upset a lot of people. And Phil Fish is probably the person least qualified to draw that line.

@starvinggamer: I think it depends on the situation. Giant Bomb is a professional editorial site that feeds into metacritic. Should they share revenue for quick looks? I don't think so, because those videos serve a purpose outside of just saying "watch me play this game!". Should they share revenue of an Endurance Run (or equivalent)? Absolutely.

Quick Looks aren't really cut and dry like that. A lot of them are purely made for entertainment value. (i.e.: Watch us make fun of this shitty-ass game). And most Quick Looks are not associated with games that receive reviews (which are the only element that actually feeds into Metacritic).

I think you have to admit even if game companies were to do something about the "let's play" crowd they'd get villified no matter what. I think there's always the notion that its the big guy vs. the little youtube streamer when in reality it's more like little youtube streamer vs. smaller indie game studio.

Yes.

@hailinel: yeah, I agree, but regardless of their intentions Quick Looks are still just showcases of games. Giant Bomb might choose games solely for their comedic value, but they still fall under the format of 'here is our first or early impressions of this game and here is what we think'. Those videos still serve a quasi-editorial function even if it's just being played up for laughs.

I don't think it's as simple as saying all developers should get revenue from all videos. I think there is merit to the idea, but there are too many variables to draw that hard of a line.

@turboman: Like I said earlier, I don't have any opinion about whose entitled to this money, all I'm saying is that it's a poor comparison. I agree that the video you showed is a perfect example of someone abusing another person's product for their own financial gain. That being said, regardless of how little the player added to the experience of watching it, the video is still a distinct product from The Last of Us. Watching that video doesn't give you the ability to play The Last of Us, to explore the world, to shoot Clickers, it lets you watch someone else do that. An uploaded video of Pacific Rim on the other hand is not a distinct product, it's still just Pacific Rim.

I just think making the comparison between video games and films is unwise, because they're different mediums, and we need to set different standards to reflect that. Films had to establish their own laws for this problem, video games should do the same, they shouldn't adopt the laws made for a completely different format.

The NFL didn't invent football, they just use the game to make money. In your analogy the NFL should actually be the streamer, not the game company.

It depends on the video and the amount to which a work is transformed.

Artistically, a Let's Play or Quick Look is fine because the primary appeal is the commentary around the game and not the game itself. It's like how Marcel Duchamp's modified Mona Lisa is an independent work of art due to the main content being what he has added; the original was adequately transformed. The appeal is the change or addition, not the original. No one looks at Duchamp's Mona Lisa as a replacement for the original.

When Pop Artists made wild and at times suggestive collages out of popular magazines and pornography, they were not replacements for the magazines or pornography. Their rearrangement and presentation changed the point to what the artist was doing. Many times, the artist was simply commenting on the very magazine or ad they were showing in the image. When Andy Warhol mass-produced reproductions of the Campbell's Soup Can, people saw that the can itself is not the same as the can containing soup. The appeal of the Warhol can is not the same as the actual can sold in stores. He had transformed an iconic corporate creation of the time to say something about that creation.

Yet, where we draw this distinction is murky at best. For movies and television, it is especially difficult to suggest that commentary is enough of a transformation, but it is arguable. For videogames, it is somewhat more unclear, as a great deal of the actual content of most games is gameplay, and that can't be reproduced by simply recording it. Thus, a video of it may actually be enough of a transformation. Though, in general, even advocates of looser restrictions on games agree that some kind of additional content must be applied. Usually this involves notable commentary. Commentary which serves as the center of the experience and not simply window dressing.

Most of us come to Giant Bomb and watch their videos because of what they specifically offer as a crew, not to simply watch them as a replacement for playing the games they talk over. This involves both a transformation of the game from a playable experience to a purely visual experience and a change of emphasis from the game itself to the "artists" of Giant Bomb who make it their own. Now, video series like the Endurance Runs may be less clear than Quick Looks or Unprofessional Fridays, but as far as transforming content from a work into their own work, I believe Giant Bomb does a considerably good job at doing so.

I do not believe anyone needs to make the argument that developers are somehow compensated for the use of their videos by additional attention. As far as fair use goes, that doesn't really matter. It's at best a side benefit of the video-maker's actions. You can't infringe against someone but say that infringement is worth it for them. What you can do is say you aren't infringing, as you are making something new which cannot be mistaken as a replacement for the original. A Let's Play is not the same as playing FEZ. A Quick Look of Arma III isn't the same as playing Arma III. You watch both for what the creator adds to it. For games in which the single narrative is most of the content, that edges closer to movies and becomes more debatable, but the argument could still be made that the lack of gameplay and addition of commentary is enough to make it something new.

Now, I can see how frustrating it might be for developers, especially who make very narrative-heavy games, and many people do believe there should at least be some kind of sharing arrangement. A kind of grand bargain to compensate for each artist's input into the final work(the video). I don't believe that's the right way to handle it, but it will likely be appealing to many worried that the alternative is a simple ban on such videos without developer approval. Youtube has already laid their stake on that side, and any kind of bargain between video makers and developers will be at the developers' discretion. For me, that is not an acceptable resolution which respects the rights of the video makers, and it will eventually raise questions about what is and isn't allowed to be added to videos of videogames. Will some developers make sure only Let's Players who enjoy a game are allowed to monetize their videos? At what point does a video strip down enough from a videogame for it to not be afraid of a rights claim?

We are safer as a society to take a more open stance regarding fair use. When the primary power rests with corporations to decide what is and isn't okay, fair use will naturally be weakened over time. No matter how much you may like a developer or enjoy a game, the protection of your basic rights as an individual should be paramount. Even relatively small threats like this pose a challenge to whether your rights should be prioritized over that of corporations. Should their interest in maintaining market value threaten our interest in protecting free expression and art?

I hope that even the many who can sympathize with the challenges this offers to game developers may keep an open mind to the argument that the burden of proof for restricting freedoms should weigh heavily on the government and corporations and not instead rest heavily on individuals to defend those freedoms.

Nintendo didn't invent video games, they just use games to make money.

@hunter5024: If I were Sony and I produced a DVD (or even a downloadable video) that just had The Last of Us's cutscenes in them and sold it for $10, would it then make all play through videos of The Last of Us on Youtube a copyright violation magically?

It's still content that was originally created for a paying consumer to consume, even during gameplay there are environments/dialog/music that people spent hundreds of hours creating are being put out there for free in people's Let's Play videos.

@hailinel said:

As someone with so many wiki points, I'm certain you know the difference between Game and Concept. Football is a specific game, it has a creator, and that creator does not profit off of people who use his game to make money. If I wanted to start a football league, I wouldn't have to pay the NFL or the creator of football, I could just do it.

Only if the gameplay has no value. Watching a playthrough of Metal Gear Rising and playing Metal Gear Rising are two completely different experiences. Watching a playthrough of FEZ and playing FEZ are the exact same experience.

And if the gameplay has no value what the fuck is the point of it being a game.

Football, the sport, the very concept, is not something that can be packaged and sold as a product. The concept of video game, what they are, what they represent, cannot be packaged and sold, either.

The NFL, however, is a specific product. It is, ultimately, something that people pay to see, whether that be live at the stadium, or on TV, through broadcasters that had to pay the NFL for the right to air their games. Street Fighter IV is, likewise, a specific product. One which people pay for to play. Why then should Capcom not be entitled to profits taken from streams and other broadcasts of their work?

1. The applicibility of fair-use has absolutely nothing to do with how many dollars your parent company has in its coffers
2. I'm 99.9% sure that whenever Vinny or Drew downloads a random game on Steam and does a QL of it, they didn't write the publisher first and say "pretty please may I"?
3. The size of your fair-use AOE does not increase as you level-up/spend more time in the industry

Giantbomb is, self-admittedly, a personality-driven site. By very definition, large swathes of their business model revolve around the idea of "watch us play this game!". Some people may watch their videos for game impressions, some may watch it for entertainment value, and the exact same can be said for any YouTuber out there. There is no distinction to be made.

@turboman: I'm not saying that the video isn't infringing upon their copyrights, I'm saying it's a gray area that needs to be further defined. I just think that applying the rules established by other mediums to this one will lead us down a risky path that no one will benefit from.

@hailinel: If you weren't bringing up football for the interactivity of the sport then why were you bringing it up at all? This brings us right back to the beginning of the argument, so let's start over.