Ask Carey! is a column where Power Up TV founder Carey Martell answers your questions about topics related to YouTube and internet video.
I’ve had a question for a while. I’ve really wanted to do JonTron type videos lately and I’m wondering how can I record games without getting a copyright strike on my channel? I know certain companies give you direct permission to upload their games but what about games such as Sonic R, Banjo Kazooie, and other retro games? After a conversation with a TGN employee I was told I can upload and monetize these games as long as I have no copyright music in my videos if I’m a part of their network. Is this true?
All music is copyrighted. There is no such thing as non-copyrighted music. The question is the usage policy of the copyright owner. Is it creative commons? It is royalty free? Do you need a special license? Those are the questions that need to be answered before you include the footage in your video.
The TGN employee you spoke to appears to be wholly ignorant of how copyright actually works. Every creative work is copyrighted at the moment it was created. There is no such thing as a creative work that isn’t copyrighted. The question is only how the copyright owner wishes to enforce their rights. I do not know what type of training the TGN employee had, but I run Power Up TV and I am YouTube certified. I have passed their exam about Content ID and copyright rights.
You are extremely unlikely to get copyright strikes when doing older games. Where people tend to run into issues is when they do games like Grand Theft Auto III that use licensed music from major labels as part of the game’s soundtrack. Popular music nearly always has a Content ID match associated with it from the copyright owner, as the owners are in the business of licensing this music to third-parties.
The only companies that tend to do Content ID matches on game music are the companies that also publish soundtrack CDs. They tend to do matches if you just reupload the songs without the actual gameplay used. You are unlikely to run into issues if you are just doing a review and the music is part of the game footage you are showing.
The majority of Content ID matches to videos using older game footage is rarely due to the actual game publisher taking action. It is usually another YouTube network who had one of their employees incorrectly create a match listing against a game review done by one of their top creators, and then someone later upheld a match on other game reviews using this same footage. Simply appealing the claims will result in them dropping within 30 days.
When I discover these matches I tend to send an email to the legal department of the game publisher who actually owns the footage and alert them that another company is laying claim to their game footage. That nearly always results in the publisher’s legal department notifying the YouTube CMS holder they must stop claiming the footage or get a lawsuit.
Generally speaking, most game publishers do not give permission for YouTubers to make videos featuring their games. Rather YouTube game reviewers — like our text-based journalist peers — rely on the fair use exceptions of copyright law.
A game review is a product review, and it can be argued that a well produced review offers educational value and important criticism. Because a video game is an audio-visual medium it is justifiable to reproduce small portions of the original work (the videogame) in order to use those small samples of footage as an example when critiquing those sections of the game.
YouTube official policy concerning the use of game footage in videos is located here.
Without a license Youtube encourages you to only show small portions of gameplay when producing your review. This is in line with the fair use clause of copyright law requiring that only small portions of the original work be used when producing your own derivative work.
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