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Why aren't TIHYDP covered under Fair Use?


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Hey guys,

New to the forum, and as you can see by my dumb question, not very smart about law.

Phil has often said TIHYDP (all of them? I'm not sure) are copyright protected, and if he had the resources, could own then.

But why do they not fall under the category of satire/commentary/parody? 

Again, stupid question I know, but I've just always wondered.

Cheers!

 

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Fuck this discussion about it being fair use or not. It is totally irrelevant. No one have yet to prove that it is or isn't.  It falls under the category of Tolerated use. Which is in essence exactl

"There is nothing we can do that could make us worse then him." Is that their sole moral foundation? "Well, I didn't stoop lower than my delusional perception of DSP, so I'm a-OK!" Yikes. Th

Why did they not send in the beginning? I doubt Vaultboy, Mark Heinz and Davidson contacted Phil

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They are if they can prove they are transformative. This becomes very sketchy with This Is How You Don't Play videos because a sizable chunk of their content is just the rights holder's (DSP) videos, though they are spliced up and usually have comments (either actual comments from the Youtube page or author's comments from the guy who's making the TIHYDP.) 

However, any amount of Internet lawyering we do here or on Youtube will not be sufficient enough. If you want the definitive answer, Phil would have to take someone to court. Only a copyright lawyer and a judge could make an actual ruling on them. And that court case would get kinda sketchy because Phil's content is just commentary over copyrighted work. It would definitely be interesting. Relevant article: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

 

"So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation."

Edited by MoonRiver
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36 minutes ago, MyFunnyValentine said:

Hey guys,

New to the forum, and as you can see by my dumb question, not very smart about law.

Phil has often said TIHYDP (all of them? I'm not sure) are copyright protected, and if he had the resources, could own then.

But why do they not fall under the category of satire/commentary/parody? 

Again, stupid question I know, but I've just always wondered.

Cheers!

 

Welcome to the forums

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Edited by GuessWhat
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Fuck this discussion about it being fair use or not. It is totally irrelevant. No one have yet to prove that it is or isn't. 
It falls under the category of Tolerated use. Which is in essence exactly the same. 
As long as the copyright holder for some reason don't enforce their claims on copyright, how fair it is or is  not doesn't matter. 
Because everyone can use it as they please with no consequences. 

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15 minutes ago, Amityville said:

Anyway, ive seen TIHYDP where they make derogatory comments about Leanne which could be classed as harassment.

Same male haters accuse dsp of being sexist with fake pc outrage, then insult his girlfriend's looks, sounds hypocritical to me.

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5 hours ago, Amityville said:

Parody isnt an excuse to copy content. If you show clips of films in a parody they get flagged. Phils videos should be no different. Anyway, ive seen TIHYDP where they make derogatory comments about Leanne which could be classed as harassment.

Parodies are fair use. I said this in the other topic but CinemaSins and HonestTrailers make hundreds of videos that consist SOLELY of ripped footages from films and TV shows and make parodies/critiques of them with MILLIONS of views. And they are very clearly making a profit. So how exactly do the TIHYDPs not count? 

Edited by FatalSeabass
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2 hours ago, FatalSeabass said:

Parodies are fair use. I said this in the other topic but CinemaSins and HonestTrailers make hundreds of videos that consist SOLELY of ripped footages from films and TV shows and make parodies/critiques of them with MILLIONS of views. And they are very clearly making a profit. So how exactly do the TIHYDPs not count? 

First off, those businesses getting millions of views may actually be getting permission and/or have spoken to the movie studios' legal departments to hash out any issues in regards to their video content. If they're literally doing NOTHING in that regard? Then what they're doing IS completely and utterly illegal. Just because the vast majority of movie studios haven't stricken them to death with copyright strikes doesn't mean it's allowed OR legal; it just means nobody is willing to prosecute. Keep in mind, it's one lawsuit PER VIDEO on YouTube to get something actually taken down properly. I'd be willing to bet that most movie studios don't care enough about the negative exposure they may get on YouTube from these guys to sue.

 

Cinemasins could be viewed as a "review" of a movie, except they reveal the entirety of the plots and use a TON of footage. In court, it wouldn't hold up, because it would be argued that by watching Cinemasins you've basically expunged enough of the original work that a person would not want to go watch that movie themselves, constituting copyright infringement/theft.

HonestTrailers are more of a parody, where you take the original trailer and manipulate it enough (different voiceovers/scenes etc.) to be something completely different than intended; so that one IMO would be more of a "grey area" if it were to go to court. 

TIHYDP are NOT parodies. When you watch an HonestTrailer video, it doesn't purposely exclude the vast majority of the trailer to make Schindler's List look like Schindler was as bad as Hitler; it doesn't say that the cast of Father of the Bride were pedophiles. It doesn't turn Ride Along into a movie where the protagonists kill cops. That's EXACTLY what TIHYDP does: unfairly represents what the entirety of my Playthrough actually is, by ONLY emphasizing certain aspects disproportionately to make me look bad; then adding in incredibly slanderous, insulting statements from the comments of said videos to compound the misrepresentation of what the Playthrough actually is.

When you watch an HonestTrailer video, you don't want to kill the people who made the movie. When you watch a TIHYDP, a LOT of them make you want to never watch a single video or stream of mine, and to publicly deride/slander me to the point I can't make a living. That's the difference: INTENT. And intent has quite a HUGE bearing on what is considered to be covered Fair Use or not.

 

One more comparison: History Science Theater 3000's entire premise is to take "shitty movies" and talk trash over them, making fun of how bad they are. Guess what? They can only do so for movies which 1. they've gotten legal permission or 2. are public domain (no longer protected under copyright law). For CURRENT, NEW movies, they have RiffTrax: where they record their voices while watching the movie, but it's YOUR responsibility to legally purchase the movie, then play the RiffTrax audio simultaneously with it to get their commentary. They CANNOT just do a standard MST3k video over a NEW movie, because even though you could say "it's parody/review/fair use" it still wouldn't be covered.

The VERY same premise goes for TIHYDP. So until a court rules that the MST3K guys can do commentary over copyrighted movies, TIHYDP will always be illegal. 

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  • 5 months later...
On 2/12/2017 at 11:59 PM, Phil said:

First off, those businesses getting millions of views may actually be getting permission and/or have spoken to the movie studios' legal departments to hash out any issues in regards to their video content. If they're literally doing NOTHING in that regard? Then what they're doing IS completely and utterly illegal. Just because the vast majority of movie studios haven't stricken them to death with copyright strikes doesn't mean it's allowed OR legal; it just means nobody is willing to prosecute. Keep in mind, it's one lawsuit PER VIDEO on YouTube to get something actually taken down properly. I'd be willing to bet that most movie studios don't care enough about the negative exposure they may get on YouTube from these guys to sue.

 

Cinemasins could be viewed as a "review" of a movie, except they reveal the entirety of the plots and use a TON of footage. In court, it wouldn't hold up, because it would be argued that by watching Cinemasins you've basically expunged enough of the original work that a person would not want to go watch that movie themselves, constituting copyright infringement/theft.

HonestTrailers are more of a parody, where you take the original trailer and manipulate it enough (different voiceovers/scenes etc.) to be something completely different than intended; so that one IMO would be more of a "grey area" if it were to go to court. 

TIHYDP are NOT parodies. When you watch an HonestTrailer video, it doesn't purposely exclude the vast majority of the trailer to make Schindler's List look like Schindler was as bad as Hitler; it doesn't say that the cast of Father of the Bride were pedophiles. It doesn't turn Ride Along into a movie where the protagonists kill cops. That's EXACTLY what TIHYDP does: unfairly represents what the entirety of my Playthrough actually is, by ONLY emphasizing certain aspects disproportionately to make me look bad; then adding in incredibly slanderous, insulting statements from the comments of said videos to compound the misrepresentation of what the Playthrough actually is.

When you watch an HonestTrailer video, you don't want to kill the people who made the movie. When you watch a TIHYDP, a LOT of them make you want to never watch a single video or stream of mine, and to publicly deride/slander me to the point I can't make a living. That's the difference: INTENT. And intent has quite a HUGE bearing on what is considered to be covered Fair Use or not.

 

One more comparison: History Science Theater 3000's entire premise is to take "shitty movies" and talk trash over them, making fun of how bad they are. Guess what? They can only do so for movies which 1. they've gotten legal permission or 2. are public domain (no longer protected under copyright law). For CURRENT, NEW movies, they have RiffTrax: where they record their voices while watching the movie, but it's YOUR responsibility to legally purchase the movie, then play the RiffTrax audio simultaneously with it to get their commentary. They CANNOT just do a standard MST3k video over a NEW movie, because even though you could say "it's parody/review/fair use" it still wouldn't be covered.

The VERY same premise goes for TIHYDP. So until a court rules that the MST3K guys can do commentary over copyrighted movies, TIHYDP will always be illegal. 

Then by your logic does that mean that every person that uses gameplay for a Let's Play has to ask the developers to use their content. This is what Fair Use is for. It is an exemption from Copyright law as it is transformative enough that the product that a Let's Player provide is unique over that of the company. This is why people don't need to obtain permission from the Copyright holder as enough of the product isn't an exact replica of the original media. Regardless of whether or not these videos "slander" your image is irrelevant as the product that most TIHYDPs fall under the same grey area of Fair Use as your videos. If they took ALL of your coverage of a game and upload it with little or no editing, than that would break Copyright law as it wouldn't be transformative and would be a substitute for your product. However, most TIHYDPs use only a fraction of your walkthroughs and edit it in a way that you may disagree with, but transform it as a satire/parody that is enough so that they get their point across and makes it so that people would have to see YOUR coverage on YOUR CHANNEL in order to see YOUR whole play through. This "they make me look bad" mindset was the same as Derek Savage when he struck I Hate Everything with a Copyright Strike. It was because Savage thought he could use the law to silence people who offer criticism to their product and it left a sour and bitter taste with people. This over reaction behavior will lead to people being disgusted that a person would issue a strike because someone's feelings were hurt over a video.While I believe that your strikes against your channels are unjust, I think that you feel that the rules that protect your content from Copyright law doesn't apply to those who make videos to parody you. Please understand that this is NOT a knock off of you and I normally am neutral and watch your content once in a while, but I believe that you should do a little more research into this kind of stuff because this isn't just Youtube's rules, but its a FEDERAL LAW to protect the content of everyone, both for YOU and your detractors.

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I think it's safe to say that they fall under the same grey area of fair use that LP's do.  No one is going to sue over it I would imagine.  If you've ever been in a lawsuit, even one that moves "quickly", you could buy a car with what it costs.  

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You seriously revive a thread from february?

And no, neither LPs or TIHYDP are fair use. Nintendo or any company can take it down if they want and the transformative argument doesn't work when you're using such a large amount of copyrighted content.

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56 minutes ago, KGhaleon said:

You seriously revive a thread from february?

And no, neither LPs or TIHYDP are fair use. Nintendo or any company can take it down if they want and the transformative argument doesn't work when you're using such a large amount of copyrighted content.

Got any sources for those claims? Because that sounds like made up bullshit my dude.

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5 hours ago, YEE said:

Got any sources for those claims? Because that sounds like made up bullshit my dude.

Spoken like a true detractor. Always ask for "Proof" because you're too lazy to look yourself and scared to be wrong. 

Besides you guys are playing into drama again! Phil condemned this! If you want to do something just report the videos to Youtube!

Edited by ThatDogGuy
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2 hours ago, ThatDogGuy said:

Spoken like a true detractor. Always ask for "Proof" because you're too lazy to look yourself and scared to be wrong. 

Besides you guys are playing into drama again! Phil condemned this! If you want to do something just report the videos to Youtube!

What you report them over?  Pretty sure the discussion of what pertains to "Fair Use" is rather pertinent if you're talking about reporting videos.

 

7 hours ago, YEE said:

Got any sources for those claims? Because that sounds like made up bullshit my dude.

Here's a good example of EULA for games pertaining to SquareEnix:

(TL;DR: You own the right to USE the games, but we don't, in fact, OWN the game)

OWNERSHIP

You agree and acknowledge that all title, ownership rights, and intellectual property rights connected with the Game Software and any and all copies thereof (including but not limited to any derivative works, titles, computer code, themes, objects, characters, character names, stories, dialogs, catch phrases, locations, concepts, artwork, graphics, animation, sounds, musical compositions, audio-visual effects, text, screen displays, methods of operation, moral rights, “applets” incorporated into the Game Software, and any related documentation) are owned by Square Enix or its licensors.

LICENSE CONDITIONS AND RESTRICTIONS

...

(e) sell, rent, lease, license, distribute, upload to any Internet server or web site, or otherwise transfer any portion of this Game Software or any copies without the express prior written consent of Square Enix. Notwithstanding the foregoing, you may permanently transfer all of your rights and obligations under the License to another person for non-commercial use by physically transferring the original Game Software media (e.g., the CD-ROM or DVD you purchased), all original packaging and all manuals or other documentation distributed with the Game Software; provided, however, that you permanently delete all copies and installations of the Game Software in your possession or control, and that the recipient agrees to the terms of this Agreement. You shall be solely responsible for any taxes, fees, duties, withholdings, charges and assessments that may be due in connection with such transfer.

 

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3 hours ago, PoopMagnet said:

What you report them over?  Pretty sure the discussion of what pertains to "Fair Use" is rather pertinent if you're talking about reporting videos.

Not all videos break the TOS but in the past I've seen fair use broken as well as copyright, slander, homophobic slurs etc and taken a few down as they're against TOS.  

Edited by ThatDogGuy
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59 minutes ago, ThatDogGuy said:

Not all videos break the TOS but in the past I've seen fair use broken as well as copyright, slander, homophobic slurs etc and taken a few down as they're against TOS.  

Copyright is a tough game to play, a lot of the fan art in Phil's vids are just photoshops of copywritten work for that game; slander has to be complete lies like "Phil murdered some guy back in the summer of '98!"  Homophobic statements are the only ones that aren't in some form of a "grey zone" and should be called out.

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30 minutes ago, PoopMagnet said:

Copyright is a tough game to play, a lot of the fan art in Phil's vids are just photoshops of copywritten work for that game; slander has to be complete lies like "Phil murdered some guy back in the summer of '98!"  Homophobic statements are the only ones that aren't in some form of a "grey zone" and should be called out.

What about "pedo"? That's pretty slanderous.

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57 minutes ago, ThatDogGuy said:

What about "pedo"? That's pretty slanderous.

Yep, agreed since that is a pretty heinous crime to commit.

 

7 minutes ago, Amityville said:

Hook. Line. Sinker. End thread.

Opposing side: DSP's videos couldn't be made WITHOUT the game content created by the developers of said game.  He doesn't own the rights to the game, he just has a licensed agreement to play/use the content they created, this is where EULAs come into play.

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14 hours ago, KGhaleon said:

You seriously revive a thread from february?

And no, neither LPs or TIHYDP are fair use. Nintendo or any company can take it down if they want and the transformative argument doesn't work when you're using such a large amount of copyrighted content.

There is a reason why Nintendo claims Copyright over any videos that involve their content. Japan has no fair use laws regarding any product placed. This would even include people who stream it in another country where it does have Fair Use laws. The Japanese side of the company would believe that they are in the right of their product in THEIR country rather than the United States which does have Fair Use laws that prevent claims to be filed on everyone's channel.

Another thing to point out is that there is not cut-off limit of the amount of content one can use without being Fair Use(i.e: you can only use 30 minutes of someone's content or its illegal). While there could be a large portion of a game or movie in a person's video, it could still fall under Fair Use as long as it displays a point of critique (be it positive or negative). A company could take it down regardless because Youtube is not the perfect platform, but its a matter of wether or not the company is willing to battle you in the court for what is to be honest pennies compared to what they bring in.

The reason I brought the thread back is because regardless of what a person thinks and what they tell their fans, the fact is that Fair Use is not written around what a person thinks is Fair Use or how they believe Fair Use should be. It doesn't matter if the person is the CEO of Nintendo or just a person who is fame hungry, EVERYONE should be informed about Fair Use from an unbiased view. This is NOT an attack on you or DSP, but its just a point of reference to those on the forum who wanted to know if these kinds of videos fall under Fair Use.

Also I did not know that this would be getting so much people here. Hello to all you people. :)

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On 2/12/2017 at 11:42 AM, MoonRiver said:

They are if they can prove they are transformative. This becomes very sketchy with This Is How You Don't Play videos because a sizable chunk of their content is just the rights holder's (DSP) videos, though they are spliced up and usually have comments (either actual comments from the Youtube page or author's comments from the guy who's making the TIHYDP.) 

However, any amount of Internet lawyering we do here or on Youtube will not be sufficient enough. If you want the definitive answer, Phil would have to take someone to court. Only a copyright lawyer and a judge could make an actual ruling on them. And that court case would get kinda sketchy because Phil's content is just commentary over copyrighted work. It would definitely be interesting. Relevant article: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

 

"So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation."

The thread should have stopped here (yes I know it's old.) Anyone who says that Let's Plays or the TIHDYP videos definitely are or are not covered under Fair Use is talking out of their ass, full stop.  We can offer opinions based on what we think is relevant information but the FACT is that until it's challenged in court, absolutely no one can say if these things do or don't fall under Fair Use protection. Until that time, it is SPECULATION, no matter how vehemently someone argues one position or the other.

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