United States Law permits superseding certain elements of copyright under the doctrine of fair use.
Fair Use is determined with four factors:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
Unlike other media such as a video, when one runs a video-game, they are supplying their own creativity into a framework to produce an outcome. This outcome is composed of two major components:
- Imagery and audio samples created by the copyright holder of the underlying work.
- Decisions and personal style of the player to use components of the former and rework them into a new creative work.
With the exception of Choose your own Adventure style video-games which only allow for a limited predefined set of ways to proceed through a video-game, most video-games allow for an incalculably large set of possibilities to proceed. Odds are infinitesimal for two different players, or even the same player on two different occasions, to reproduce the exact same outcome. Furthermore, it is often the case that players end up proceeding through a game in a way the copyright holder of the underlying work did not intend nor foresee.
When a player records their progression through a video-game, they are creating a new creative work using their own artistic abilities, preferences, and skill. A video recording of this new creative work is very different from the original. The new creative work cannot be used or converted back to the original media with the same features the original media offered. The video recording is not a video-game. To compare a video recording of a video-game to a video-game would be akin to comparing a printed document which contains text and drawings using fonts and other textual features from a word processing application to that word processing application. Just as the output forming a new work in a different media form from word processing software or from painting and photo editing software constitutes a new uncovered work, so does a video recording of the typical video-game under the doctrine of Fair Use.
To apply these ideas to the four criteria for Fair Use:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- Video-game recordings are generally for non-profit entertainment.
- The nature of the copyrighted work
- The copyrighted work is an easel for new creative work by third parties.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- While audiovisual components are taken from the copyright work, the copyrighted work consists of many audio and visual components, texts, computer code for many different menus to control the video-game, and allow for infinite kinds of derived works. Most of the copyrighted work, including its essence, that of being a video-game to be played by a player for new ways to proceed through the game, is no longer present. Furthermore, what is present is creatively combined in new and unpredictable ways along with external input.
- The effect of the use upon the potential market for, or value of, the copyrighted work
- The new derived work does not compete with the original copyrighted work, as the new derived work is very limited in its potential scope compared to the original. Furthermore, the new derived work often serves as an advertisement for the original.
In closing, although a new derived work is created, this new creative work is generally uncovered work under the doctrine of Fair Use.