Tags
AngryJoe, cease and desist, Copyright, Copyright Infringement, Fair Use, Joe Vargas, Mario Party 10, Nintendo, YouTube
A Well-known YouTube video blogger has done what he does best and posted a video to express his deep displeasure with a Nintendo ordered take-down of one of his other videos. Joe Vargas, who appropriately enough goes by the handle ‘Angry Joe,’ runs his own YouTube channel where he regularly posts reviews of video games and videos on other similar topics. While Angry Joe has reviewed Nintendo games before, Nintendo ordered YouTube to take-down Vargas’ approximately 30 minute ‘play-through’ video of him and a couple of friends playing Nintendo’s Mario Party 10 game and commenting on it. Undoubtedly, Nintendo objected to the video’s heavy featuring of the game’s on-screen action and copyrighted content.
However, Vargas has taken the video’s removal personally and posted a vrant in order to vent his frustrations regarding Nintendo’s actions to his legions of viewers (check it out, it is an entertaining, witty rant as rants go). Vargas views the take-down as a betrayal by Nintendo, especially given that, not only has he spent hundreds of dollars on Nintendo’s Wii U console, but he has essentially been providing Nintendo with free advertising via his video reviews. He opines that Nintendo’s actions are born out of greed in wanting to grab from Vargas the advertising revenue he gets from his videos that feature Nintendo content. Vargas also notes that up to now that he has been a fan of Nintendo, preferring the Wii U over Xbox One or PlayStation 4, giving favorable reviews of Nintendo games, and recommending that folks invest in a Nintendo game system. However, those days are over as Vargas has sworn that he will never again make another video regarding Nintendo products.
Much of Vargas’ fury seems to stem from Nintendo’s recent creation of a new YouTube policy called the Creators Program. The Creators Program essentially is a revenue sharing program where Nintendo will share 60% of the ad revenue generated by videos featuring Nintendo content with participating YouTube video creators like Vargas, while also granting them a license to use Nintendo’s content in their videos. Ironically for Vargas and his claim of corporate greed by Nintendo, the Creators Program appears to have been founded in response to an earlier controversy when it was revealed that Nintendo would be receiving 100% of the ad revenue from YouTube videos that feature its game content (instead of Nintendo just issuing take-down requests), which was problematic for some YouTube channel owners who make a living from the ad revenue their videos generate. Essentially, the Creators Program is a win-win for YouTube video creators: they get the majority of the ad revenue (where previously they were getting none) and they get Nintendo’s permission to use its content, which effectively insulates them from any copyright infringement claims. However, the Creators Program does have limitations. Participants have to register their videos (entire channels can also be registered) with Nintendo for approval before they can start receiving ad revenue and participants may only use content from a limited number of games specified by Nintendo. Mario Party 10 is not on Nintendo’s approved list, so it’s possible that Nintendo’s take-down of Vargas’ video is part of a wider copyright enforcement effort in order to try to drive video makers to participate in the Creators Program (although, given Vargas’ reaction, a counter-productive one, especially since they could have just continued their old policy of sucking 100% of the ad revenue from his Mario Party 10 video . . .it doesn’t make sense to force people to let you share your ad revenue with them. . .generous as that program might be).
Regardless of what Nintendo’s rationale or motivation was for going after Angry Joe’s Mario 10 Party video, this may be an example of where a company’s overzealous copyright enforcement, although on legally solid ground, may actually result in self-inflicted harm to the company’s brand. I’ve commented previously on how over-aggressive trademark enforcement by a company, especially if going against fans and consumers, may actually result in a negative backlash, and also those who may feel unfairly targeted by a trademark enforcement action may use the power of social media to strike back. In both respects, this case is no different, aside from taking place in the copyright arena. Vargas has a considerable online presence to bring to bear in his public rage against Nintendo. Vargas’ channel has almost 2 MILLION subscribers to his YouTube channel and easily over 300 million views across his various videos (his Nintendo rant video itself is quickly approaching the 1 million views mark). That’s a lot of current and potential consumers of Nintendo products. Additionally, a quick Google search reveals that the story of Angry Joe’s disgust and pledge to never again review another Nintendo game has been picked up by several news outlets within the gaming community such as GameSpot, but also by more mainstream outlets such as Forbes. Needless to say, that’s a lot of potential negative publicity (depending on how sympathetic others are to Vargas’ outrage) for Nintendo, which could result in lost revenue opportunities. Not to mention that Nintendo just lost a self-admitted advocate in Vargas himself, who did essentially provide them with free press and advertising.
On a side note, would Vargas have any argument if he decided to fight Nintendo’s take-down? There’s very little doubt that the visual content and characters in Mario Party 10 are squarely Nintendo’s copyright (not to mention that some of the characters themselves may also be trademarked). Vargas best bet would be to argue that his video is a news review and is permitted as Fair Use. Reviews and commentary on another copyrighted work, such as movie and book reviews or scholarly articles are usually accepted as Fair Use, even if they incorporate part of the work into the review. Still, making that argument is no slam dunk for Vargas. Of the four fair use factors that a court would look at, the one that would weigh the most heavily against Vargas would be how much of Mario Party 10 he is using in his video. Although I have not seen Vargas’ play-through (thanks Nintendo), I imagine that its visuals, like most similar videos of this type, consisted almost entirely of the on-screen game action as Vargas and friends talked and played through it, likely also with the game’s sounds, dialog and music playing as well. Not to mention that this video goes on for 30 minutes. That’s a big portion of the game, one that a court may find is an unnecessary over-use of Nintendo’s copyrighted content, as opposed to if Vargas had just used short clips from the game to illustrate his commentary. Of course, fair use factors that weigh in Vargas’ favor are that his use and purpose of criticism/commentary is usually permissible and that it is unlikely that his video would negatively impact the market by being used as a substitute for would-be consumers, instead of buying the game. Regardless, there is no guarantee of success for Vargas if he did make a fair use argument.
Therefore, while Nintendo does indeed have every right to protect its valuable copyrights in its games, in the case of where such enforcement actions upset prominent video bloggers like Angry Joe, it may have behoove Nintendo to be more nuanced about their enforcement strategy and perform a cost/benefit analysis on what they hoped to achieve versus the potential consequences. In the words of Angry Joe Vargas himself, “Nintendo may have a legal basis. . .but it doesn’t mean they HAVE to do this.”