@princeofshapeir said:
Watching a copyrighted movie on YouTube is not covered under fair use, even if it's being commented on, because of the third factor: amount and substantiality of the portion used in relation to the copyrighted work. An upload of a movie accounts FOR EVERY CONCEIVABLE PORTION of the movie: there is no difference in terms of content between watching a movie you paid for and watching a movie on YouTube. But a Let's Play is covered specifically under the third portion because watching someone else play a video game is not the same thing as playing the game yourself. Video games are inherently subjective experiences that rely on player input, and so even watching a Let's Play of the most linear game possible cannot replace actually playing that game. This is why piracy of video games are NOT covered under fair use: because the entirety of that work can be reproduced and distributed to anyone to extract the same experience as purchasing the copyrighted work themselves. But a Let's Play doesn't offer the exact same experience as purchasing the game yourself and playing it, so it is covered under fair use.
Actually, that's a really good point. Games are somewhere in the middle between video productions and toys, and while re-uploading substantial chunks of someone else's video content to Youtube for financial gain is going to infringe on someone's copyright, I'm pretty sure playing with an action figure or a board game on Youtube shouldn't.
It still feels a bit iffy to me that some people are making money off playthroughs of very linear games - especially when I know from experience that watching LP videos can put me off buying a product. There are definitely occasions where I feel like I've already experienced a lot of what a game has to offer - the dialogue, the cutscenes - all those elements you'd think of as basically traditional video content, after watching a Let's Play. That's why I think it makes sense to judge copyright claims on each particular case.
Still, that's not very instructive or helpful for most of us. Fair Use is a pretty obscure concept in the UK, but I hope that's something that's going to change. A common sense interpretation of what's really "fair" might be a much better guideline than whatever the check-box licence agreements bundled with software purports to bind us to.
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