However, from a German and European copyright point of view, this market raises some issues and uncertainties that have yet to be addressed in case law.
Legal protection of content
Computer games enjoy copyright protection. The individual works of art as graphics, music and user interfaces are protected as a “personal intellectual creations” in accordance with the German Copyright Act (§ 2 UrhG). Besides, the overall composition of the computer game is an audiovisual or similar work and is therefore granted copyright protection under § 2 para. 1 no. 6 UrhG. The publisher’s proprietary rights of use and exploitation of the game also include the sole authority to release the work in intangible form, e.g. on internet platforms accessible to third parties.
Recently, it has been discussed to grant the players of such games a “neighbouring right of the performing artist” pursuant to § 73 UrhG and give them the right to record and publicly release their performances, especially on internet platforms like YouTube.
However, there are rights of third parties on the copyright protected content of Let’s Play videos. Consequently, anyone publishing such content online needs the rights owner’s consent. A legal exception to this requirement – similar to the fair use doctrine in US copyright law – does not exist in German law. Some voices refer to the “right of quotation” (§ 51 UrhG). This, however, does not apply, as a quotation – apart from scientific purposes – may only refer to extracts of a work and must serve the purpose of supporting or proving the creator’s own intellectual content. Only in very rare cases will the comments on game performances rise to a level that would permit considering the game content a supporting quotation of such commentary.
So what is the explanation for the amount of publicly accessible Let’s Play content in the World Wide Web? Did producers and/or players give their explicit consent for recording and publication?
Surprisingly, the answer is yes! At least some of them did. Most game producers abstain from proceedings, or even actively encourage production of Let’s Play videos, as the publication of game content comes with a significant advertising effect. The game is presented to a broad audience, target-oriented and above all at no charge. As a result, this is a very effective marketing measure for the producer (which also raises interesting questions of advertising law).
Despite the partly generous position of the game producers, Let’s Play users are not entirely safe from trouble. In late 2013, a big purge swashed through YouTube’s repertoire, when YouTube selectively deleted all content of the players and also suspended various accounts. There was no consultation of game producers in advance. Thus, some producers now offer “declarations of tolerance”, in which they declare that they do not have any objections against the publication of video material or screen shots on YouTube, as long as these do not contain (otherwise) unlawful or explicit content. At the same time the producers emphasize that in case of deletion by YouTube, they will not intervene.
So, what does apply exactly? – It is hard to say. As long as there is no clarification by the courts, players uploading Let’s Play videos can be considered safeguarded, if they ask the producer for prior consent or declared tolerance before publishing one of their clips. It is also conceivable that courts will expand their legal position on Google image search thumbnails in this case. According to a 2010 ruling by the German Federal Court of Justice (the highest regular civil law court in Germany), the rights owner may not take action against the display of photographs as preview images in search engines, if an objective declaration of consent for the use by an image search engine can be taken from the right owner’s coherent action. A coherent action can already be assumed when the right owner presents his works to image search engines without further protection.
As long as computer game producers continue tolerating the publication of Let’s Play content and offer specific tolerance declarations, these objective declarations are close enough to a consent.