United States Law permits superseding certain elements of copyright under the doctrine of fair use.
Fair Use is determined with four factors:
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:
  1. Imagery and audio samples created by the copyright holder of the underlying work.
  2. 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:
In closing, although a new derived work is created, this new creative work is generally uncovered work under the doctrine of Fair Use.

HomePages/Nach/FairUse last edited by dwangoAC on 4/2/2018 11:54 PM
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