Some of the most watched user-created videos on the Internet are recordings of individuals playing video games. These are commonly referred to as “Let’s Play” videos. The revenue that these videos can generate on YouTube and Twitch TV has created a multi-billion dollar industry. Unfortunately, this burgeoning industry utilizes copyright protected works. Some video game companies assert that “Let’s Play” videos infringe upon their copyright protection. The “Let’s Play” community claims that their videos fall within the fair use defense to copyright infringement claims. This Note analyzes how a court would apply the fair use defense to “Let’s Play” videos. My analysis finds that precedential case law is unfavorable to “Let’s Play” videos, and that a court would most likely find that none of the four factors involved in the fair use defense analysis support protecting “Let’s Play” videos. This Note goes on to suggest that a compulsory license would be the best solution to balance the interests between the “Let’s Play” community and video game companies in this context.
“Let’s Play”: YouTube and Twitch’s Video Game Footage and a New Approach to Fair Use,
68 Hastings L.J. 1169
Available at: https://repository.uchastings.edu/hastings_law_journal/vol68/iss5/6