The Ninjabot

What Makes Video Games Different: Who Owns Your Gameplay?

Posted on February 28, 2015 at 11:26 pm by Victor Chaves

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There was a recent conversation between Stephen and Justin on the Pixelated Podcast regarding Nintendo and their Creator’s Program on YouTube that piqued my interest (listen to it here!). Basically, Nintendo is claiming copyright on videos containing their product, and as long as the uploader of the video is enlisted to the Nintendo Creator’s Program, then the uploader gets somewhere around 70% of the revenue while Nintendo gets the rest. Arguments for and against this seem to be in regards that the developer (or publisher as is more common) made the game, therefore they should own the money that comes as a product of the game; the other side points out that Fair Use under copyright law should allow the commodification of the product like video reviews and long plays of games. So who wins out regarding the ownership of gameplay, and who can make money? Well it requires some explanation regarding what elements of a game are the consumer’s and which is the developer’s, as they each own parts of the game even if a person never worked on the game’s development.

Games can communicate in three ways (a fourth if we count controller vibrations): In a visual capacity, an audible capacity, and in an actionable capacity. The first two are obvious, graphics and audio are just passive methods of communication where you can just sit there and take in what your eyes and ears are receiving (like movies, television, and books). The third is tricky, as communicating in an actionable capacity is the user simply giving an input, and receiving an output as a response to said input, which is unlike any other form of entertainment out there. The reason this is tricky is because games use the audio and visual methods of communication in order to explain the consequences of the user’s actions. Basically, you can’t play a Mario game if you can’t tell if you were able to jump on the Goomba; you need to see the Goomba getting squished or hear the sound as a result of a successful attempt in order to competently act in the game.

Being that these actions occur because of your decision, that means you have a degree of agency, or the ability to act however you choose to. Agency is what separates video games from movies, books, and paintings—in fact there is no form of media that is the same as video games (except maybe choose-your-own-adventure books, but that is extremely limited).

The thing about agency is that it is limited by the amount of actions that are available, and how they affect the environment in the game—basically, it’s gameplay. When commenting on how a game has “good gameplay” we are remarking on how the agency the developers have allowed the player is well-constructed. Super Mario Bros is a game with limited agency: the player can jump, move left and right, run faster when holding a button, and that’s it, right? Actually no, because with these simple controls, the player can find nuances that allow for more precise movement, and greater control. Holding the run button allows Mario to jump higher than standing still, collecting 100 coins gets a 1-Up, and getting a mushroom allows the player to crouch. These examples are what makes a game’s gameplay (or agency) good. It is a well-constructed set of actions that allow for player discovering more actions through their choices.

So why bring up “agency”, and how does it apply to YouTubers? The point is is that these actions are not owned by any developer, but rather the player owns them because they are their actions. YouTubers, and by extension YOU, own the actions that you chose to make. Your choices, and this the bombshell here, are Interpretations of the agency in the game. People interpret movies and books, but movie studios and book publishers don’t own those reviews and thoughts on those pieces of media. It is your interpretation of Super Mario Bros.‘ agency to die from that Goomba on World 1-1 in each life and get a game over. That is an interpretation that ignores the [A] button as you don’t wish to analyze that piece of agency.

So how does this apply to YouTube copyright?

The choices of the player cannot be owned outside of the player. Capcom does not own your decision to risk running down a hall of zombies in Resident Evil instead of going back to a safe room for a herb, and Square Enix does not own whom you choose to have in your Final Fantasy party. Your interpretation of the agency of the game is basically you expressing how the game should be played.

There are exceptions, as games that rely entirely on audio and video with an extremely limited agency (like the Phoenix Wright games which are all story) can turn into more of a “visual novel” and therefore not be that much of a “game”. These semantics can argue in both ways, but if a title has enough agency then a recording of the game cannot be taken down by those who created the game. Another exception though, is if someone else is using already-made video game footage. Then that person is a jerk.

Follow Victor on Twitter @fake_brasilian to see him crushed underfoot.

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