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Video Game Playthrough Footage Should Be Fair Use

by Christopher Harbin

It’s pretty easy to get duped into buying a crappy video game.  A lot of video game marketing  is pretty shady.  Submitted for your consideration: the Madden “bullshot.”  Bullshots are promotional screen captures released by game companies that bear absolutely no resemblance to the final product. Gameplay footage released by game companies can be even more misleading.  Some games don’t even fairly represent the correct genre.  I’m looking at you, Brutal Legend.

As one of the “have it right this second” generation, I buy my games on release day before the reviews are out.  And because you can’t return video games after they’ve been played, I have been burned more times than I can count.  Hellgate: London was so bad, I half-expected to find it kicking my dog in the middle of the night.  In fact, I stabbed my eyes out with a fork because it was faster than uninstalling the game.   I’ll be here all week.  Try the veal.

So now I’m a big fan of watching video game playthoughs on various gaming sites and Youtube to decide whether a game is worth purchasing.  For me, I find that gameplay footage is much more useful to my purchasing decision than reviews — even video reviews that include snippets of gameplay.   Especially with long role-playing games, I like to be able to see the game at several different points to see if a slow game picks up or whether a game that looks good in the beginning sputters out.  For example, over at, two editors recorded and posted their complete playthough of Persona 4, a 100 hour Japanese role-playing game, which included their commentary as they played.   After watching about ten hours (not in one sitting, thanks), I decided to purchase a copy.

I can’t help but wonder if these playthroughs are copyright infringement.  There weren’t any litigated cases that I could find because  most companies probably welcome the additional publicity of their games.  But lately Rockstar Games has been taking down footage of their newly-released game, Red Dead Redemption.  Also, it appears that playthrough footage of Grand Theft Auto’s IV’s expansion “The Lost and Damned” has also been pulled.  I find this a tad odd as usually only publishers of crappy games care about gameplay footage leaked onto the web as they try to encourage new-release sales.   After reviews come out, the cats out of the bag.   Red Dead Redemption and The Lost and Damned both  enjoyed high praise, so I wonder whyRockstar appears to be  issuing  take down notices.   The Pollyanna in me would like to think that these takedown requests stem from some overzealous intern rather than from corporate goons demanding outright control of all possible uses of their work.

Anyways, I think the case for gameplay footage being fair use is relatively straightforward:

Purpose and Character of the Use: Usually gameplay footage is paired with some sort of running commentary that is either entertaining or informative.  This seems pretty transformative to me especially when considering that the medium is also transformed — video games are actively played and gameplay footage is passively watched.

Nature and Amount of the Use: Both these factors probably tip towards copyright owners.  There is obviously a difference between a 5 minute sample of gameplay footage and an entire game, though.  Interestingly, I find longer gameplay videos more relevant for my purchasing decision.

Market Effect:  Gamers like to play video games — not watch them.   Even games that are quite story intensive — like the fantastic Heavy Rain — are still pretty interactive.  The only negative effect on the market for video games is that consumers who would be disappointed after purchasing the game probably wouldn’t buy the game after viewing extensive gameplay footage.

To close, I know some of you are thinking that my analysis is biased because I have a horse in the race.  My response:  You didn’t play Star Trek: Online, man. You didn’t have to endure the steaming hunk of crap that was Daikatana.  I was there, man.  I WAS THERE!

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