Video Games as a Content Creation Tool

Hello fellow gamers,

On Dec 02, Chris and I will be presenting on the use of video games in creating videos and streams in various ways. The scope of my part will be on gameplay videos such as let’s play videos or video guides for games and gameplay streaming, the legal implications for such activities, the application of fair dealing/use, and the economic relationship between developers/publishers and video content creators. Chris will be presenting on the creation of original videos through video game software, the commercial and legal implications, and a potential unique defence against copyright claims. Broadly speaking, we will be talking about to what extent such videos might constitute infringements and, if such videos do, to what extent certain defences may be applied to them.

We’ve attached the presentation for you to download ahead of time and, just in case, here’s the link to the Google Slides and the link to a PPT of the slides directly. Let us know if you have any trouble downloading the material.

We invite comments and questions to continue the discussion on this topic.

See below for the source materials we used for the presentation.

Common-law elements of fair dealing:
CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339, paras 51, 54, 55, 56, 57, 58, and 59.
https://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.html

US statutory elements of fair use:
17 USCA § 107.
https://www.law.cornell.edu/uscode/text/17/107

Discussion of commerciality in fair use:
Harper & Row Publishers, Inc v Nation Enterprises, 471 US 539, 542–43, 105 S Ct 2218, 2221, 85 L Ed 2d 588 (1985), para 46.
https://www.law.cornell.edu/supremecourt/text/471/539

Safe harbor provisions in the US from OCILLA:
17 USCA § 512.
https://www.law.cornell.edu/uscode/text/17/512

Polygon’s Articles on Pewdiepie’s Debacle:
https://www.polygon.com/2017/9/10/16285188/pewdie-pie-racist-slur-firewatch-retaliation-dmca
https://www.polygon.com/2017/9/14/16309430/pewdiepie-campo-santo-strike

Article on Machinima and Copyright Law:
Matthew B Freedman, Machinima and Copyright Law, 13 J Intell Prop L 235 (2005).
https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1319&context=jipl

Diary of a Camper:
https://en.wikipedia.org/wiki/Diary_of_a_Camper

Red vs Blue:
https://en.wikipedia.org/wiki/Red_vs._Blue

Great Battle of Skyrim:
https://www.youtube.com/watch?v=kK6RBgMgjL0