A lot of streamers on Twitch have been using music that they don’t own or that they weren’t explicitly allowed to use in their streams and now have to fear DMCA strikes and potential takedowns from clips and VODs that could be plenty of years old. Twitch is trying its best to mute those VODs and clips or potentially just remove it but has also handled the situation in an iffy way as it doesn’t communicate which content is problematic and what you’re getting struck for. Instead of saying that this VOD or this clip uses music by some artist who’s now claiming it, then you could delete that specific video and just not use that artist’s music, I guess…
But it’s all a rather difficult situation. Twitch doesn’t handle it well but should’ve stopped copyright infringements ages ago and should communicate it better right now… Meanwhile, labels, studios and artists are in the complete right as well to claim what they own, although the warner bros. bots are going a bit too far at times.
But among all the chaos in regards to DMCAs and Music and Twitch, there is one man who’s completely out of touch with the world… Alex Hutchinson who’s known for working on Spore, The Sims 2, AC3, Far Cry 4 and Journey to the Savage Planet – who now is working on Google’s Stadia!
Hutchinson’s hot take is that streamers should rather “worry about streaming the games they didn’t pay for as well” and that “streamers should pay developers and publishers of the games that they are streaming”. According to him, there should be a license “like in any real business” to pay for the content they use.
And naturally, this blew up and he’s responding to some of the comments and I’m not entirely sure if he’s not just baiting to get some attention going or if he’s completely serious about it… but it makes for a good prompt: Should streamers pay developers for the games that they make money with? Should bloggers do the same? Should I pay developers in order to acquire a license to be able to review their games, even when they sent me a copy or when I bought the copy myself?
Well, short answer: No, that’s stupid. And here’s why:
The problem with this whole idea is that the gaming industry works in a wholly different way from the music industry. Let’s say you’re a solo developer without a publisher and you end up selling a game for 5 bucks on steam. Someone buys one copy of your game and you earn 3.5 bucks whilst Steam takes 1.5 bucks for every copy sold aka 30%. (We’ll just use the 30% cut for this instead of the actual numbers that scale with how many copies are being sold and stuff because it makes it a bit easier.)
If a hundred people buy that game, the developer will get 350 bucks while Steam gets 150 bucks and everyone is happy. Of course, there are other costs involved like advertisement and potential losses but generally, you can get “free” advertisement by giving copies to select streamers, bloggers, websites and certain people so that they can talk or write about it and potentially play it in front of a large audience. A great example for that would be SplattercatGaming on YouTube who’s doing First Impressions of games. Meanwhile, if FGSquared streams it in front of her audience, she’s showing gameplay for more than just half an hour and is able to show the gameplay quite well to her audience, encouraging them to buy it. And on another note, I do reviews as well whenever I get the time to do so – and there are developers that reach out via mail to me and that want me to review their game or at least write about it.
Essentially, instead of investing a whole lot of money into Facebook, Instagram and YouTube ads, you can distribute review copies to people that will advertise your game for free. They earn money from YouTube ads and Subs/Donos on Twitch and uh… I don’t earn money at all apart from blogging but that doesn’t matter as you get the idea. It’s free advertisement, essentially, at the cost of not selling a copy to that one specific streamer, blogger or YouTuber.
On the other hand, musicians earn $0.006 to $0.0084 per play on Spotify. If the streamer plays the song in front of a large audience, they earn that $0.006 from that one play. (I’ll stick to the lower number since I also used the highest cut in the example above.) If a hundred people decide to play that song one time, the musician earns $0.60 which is… not much compared to what a solo game developer would earn. And even then, I’m not sure if that musician is getting the whole 60 cents from Spotify or if it gets split up between the artist and the label/studio, etc.
Obviously, developers will have publishers as well that may potentially take a cut as well but generally, I’d say that small developers earn more on Steam than small musicians do on Spotify. Of course, there are also sales from other music stores (like Bandcamp!) or if you buy the album somewhere else but the cut over there can be so different from artist to artist that I’m not sure if the comparison is fair.
So while the gaming industry and the music industry are completely different in that regard, at least in my uneducated and superficial opinion (prove me right if you wanna and if you know more about it), I actually do think that having licenses could be a good idea. Not for the games but rather for the music.
In my streams, I use music by Bonaparte, Desmond Cheese and City Girl who I wrote E-Mails to in order to get permission to use their music. Whenever I play their music, it shows on screen and I tend to talk a bit more about the songs and what I like about them. I also tend to tell people to check out the links below to get to the social media pages for the different artists… and I’m also sure that Bonaparte at this point earned a lot from me alone on Spotify.
What if there was a license that you could pay for that would support the artists that you used on Twitch? You’d essentially pay a fee every month or so and then you’re able to use select artists or playlists and the artists would get a better cut from the deal compared to Spotify… I’d like that idea personally but I’m not sure if that would ever work properly.
Btw, Twitch is now introducing “Soundtrack” now which is an app that not only allows you to use music by approved artists that gave permission to Twitch but that also separates the audio from the VOD, resulting in an easier time for you as a streamer. The overlay for it is also on the screen and doesn’t feel intrusive at all but I’ll write it about that eventually as well at another time.
As for gaming, I feel like it’s ridiculous to pay for a game again that you already bought just to be able to stream it. A revenue share is also a rather silly idea, in my opinion, as the streamers that earn money with their content don’t earn it because of the games… but rather because of the entertainment they provide. It’s transformative, in the sense that streamers add commentary and their personalities to the gameplay. It’s not about the game but rather about the streamer.
A revenue split would not work in a way because the streamers that do it as a hobby and that don’t earn a cent from it would still have to pay to be able to stream the game they’re playing, for free…? The idea of review copies that the publishers are HANDING OUT to certain streamers would be idiotic as the streamers would suddenly have to make less money by streaming the games that they got given.
If we take this proposal further (ad absurdum), then the pianist is going to have to pay the guy who made his piano for every single person that bought a ticket to his concert. The piano maker already got paid for the piano but suddenly, he’ll earn more and the pianist is going to have to deal with it.
Let me go even further: The ASMR and Just Chatting streamers will have to pay money to the some state because they’re streaming and making money off words. They’ll also have to pay money to the company that made their mic, even though they already bought it. They’ll also have to pay additional money to their landlord since the rent only covers them living there but not them earning money in their flats.
On another note, a lot of athletes use certain brands as well and hence advertise those. My siblings used to play table tennis and when they followed the better players for a while on TV, they would constantly wish for a DONIC table tennis racket. The fact that the best of the best were using those, at the time, made these already worth buying in their eyes, even if they had to save up a lot for them.
The pianist is playing his best music on a certain piano. The soccer player is using one specific brand of shoes whenever he wins a game. A member of a famous esports team is using a specific mouse in all of his games.
The idea of marketing and free samples and review copies is something that works quite well. Streamers playing games for their audience and hence promoting it… it works and is nothing that should get changed to get even more money for Bigfish developers and publishers while small indie studios would probably not profit all that much from it.
At last,… Hutchinson also mentioned, jokingly, that NFL and other sports organisations should maybe pay streamers to broadcast and comment on the full games… on Twitch… and that’s hilarious because while he’s mocking the idea, it’s actually a thing. Twitch does that. The NFL does that. It’s very successful actually. Hutchinson must be trolling. I don’t want to believe that someone who’s behind great titles like Spore and who’s working on Stadia is just really that out of touch with reality. Like, that can’t be…, right?
So, uh, let’s summarise: As mentioned above, I think that the proposal of having streamers pay for games that they already paid for is stupid (I just noticed that that’s what WoW and FFOnline are doing… I’m still not a fan of paid subscription models in games that you already bought). I haven’t even gotten into tax stuff and all of that… in Germany, you’d have to pay taxes and your channel would get treated like a small business as well when you earn a specific amount of money per year.
It’s also stupid to demand a revenue share when streamers add a lot of publicity to games, as you can see with Among Us (which was quite “dead” for two years and then blew up because of streamers) and Fall Guys (whose whole marketing campaign consisted of handing keys to streamers). It’s stupid to criticize streamers for earning money with their own content that is based around review copies handed out by publishers and developers. It’s like jumping in front of a car and then demanding that others pay for the hospital bills, not because of them running you over but rather because of them not being there for you and preventing you from jumping in front of the car. Doesn’t make sense? Yeah, exactly!
I hope you enjoyed this post. I kind of wanting to give my two cents on it and wanted to make a post while it’s still a “hot topic”. I’d like to hear your thoughts on it and see what you think of this whole ordeal. Is Hutchinson out of touch with reality or is he really just a genius that is too advanced for our current times?
Edit: I added “ad absurdum” to one of the paragraphs since that’s a word that I’ve been looking for while writing up the post but while it was lying on my tongue, it just didn’t come out. Now it’s there. The “to take it further” part was meant to be an “ad absurdum” mechanism to showcase how silly this idea would sound if we replace “games” and “streamers” with “pianos” and “pianists” or “microphones” and “ASMRtists/Just Chatting streamers” or “running shoes” and “athletes”. So that’s an edit I had to make to essentially just mention that it’s supposed to sound silly and absurd because it is silly and absurd in a way.
Let me start by stating that I’m with you – streamers should not pay for video game licences. However, your arguments, especially about the “let’s take this further”, are wrong. The first problem is that you compare music and video games logically with numbers. Sadly, the law has little to do with logic, real life, or even justice in some ways. There’s a saying in German: “Recht und Gerechtigkeit sind sehr verschiedene Sachen.” (Law and justice are two very different things). Or, as one judge once told me, after I’d explained to him how the experts are seeing the case: “I’m not the expert, I’m the judge”, and he proceeded to completely fuck everything up :-)
So, in theory, video games and music could be handled in the exact same way by the law. When you buy a CD or a song or a video game, you essentially buy the rights to listen to the song/play the game “for your personal, non-commercial use”. Even more, you only bought the rights to use the software, you’re not even entitled to the experience, since nobody guarantees that there will always be an appropriate medium available. If you read the terms&condictions, you’ll notice that it’s very clearly stated what you may and (more importantly) may not do. If we’re being very strict, you’re technically not even allowed to invite a friend and play it to him (I’m half joking here, since inviting friends and hanging out to music probably falls under “personal, non-commercial use”).
But, since music and video games work differently (as you mentioned), musicians and developers have – generally speaking – decided to handle the same law in different ways. Many (most?) developers state in their credits that people who purchased a copy of the game are licenced to display the game (among other stuff). Royalty-free music includes similar passages of text in their terms&conditions, which explicitly state that you may use the songs in projects etc.
Before videos and streaming were even a thing, developers did not include anything like that (in fact, many devs even stated that renting or lending without written consent was illegal!), and when Youtube/Twitch/whatever started to take off, there was a long time of insecurity what people were allowed to do, and a lot of people really made an effort to get written consent from the devs (or the copyright-holder at the time, which wasn’t always clear…). Over time, I suppose devs got tired of this and just started to say “Fuck it, do whatever you want, give us free advertising”. But from what I know that’s on the devs, NOT the law.
To summarise: The same laws apply to both media, but they simply handle it in different ways. Legally speaking (as far as I know) nothing would stand against developers starting to sell licences for streaming. If people started paying up, we’d probably see everyone do the same within 3 years. If people just stop streaming games with paid licences, we’ll return to the status quo pretty quickly.
A word about your three other points: ASMRtists, the piano player, and sponsored athletes. Your example of sponsored athletes has nothing to do with licences or copyright. Copyright is about intellectual property, which would be the brand name at most. The athletes do not use the brand name for commercial purposes, they are using the products. The sponsoring part comes from the businesses themselves, and they already own the rights. Even so, simple names are not protected by copyright if they do not pertain to your business in particular.
ASMRtist and the likes are in no danger of getting problems with copyrights, as you can only claim it for documented, original intellectual property. This means the original author of the word would need to come forward, prove that he documented it beforehand, and have copyrighted it beforehand. That, and words, names, phrases, etc cannot be copyrighted in the first place.
The piano player: A piano cannot be copyrighted. A piano is not intellectual property. The plan for building said piano could be, but the piano itself is an object (“Sache”). After you bought it, it is 100 % your own, you can do with it whatever you want. The music the pianist plays on it may very well be copyrighted, though, which would lead us right back to the beginning of my comment :-)
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The “let’s take this further” part is supposed to be an ad absurdum that is similar but also doesn’t work. If I for instance played Monster Hunter World on Stream and earned a shitload of money with donations, subs, cheers, etc. so that I could make it my job, then I’d basically have to use that tool (MHW – and maybe other games) and that platform (Twitch) as a medium to be able to earn money. In that case, Hutchinson would say that I do not own the rights to MHW and hence should pay Capcom a fee to be able to create content based around MHW. The fact that I already bought it is neglectable according to him.
In my ad absurdum example there using the ASMRtist (love that word) and the piano player, their microphone (ASMR) and their piano are necessary tools to essentially do what they do. They have to play the piano or do ASMR to be called a pianist or a ASMRtist. They may even earn money that way. If gaming should get licensed for streamers, then – if we take this case to absurdity (=ad absurdum) – why don’t we license pianos for piano players and those weird ear-microphones for ASMRtists. Why don’t we take money from athletes for every race they win in the shoes they use?
It doesn’t make sense. And that’s the point, Hutchinson’s proposal doesn’t make sense really, especially since using a certain brand of microphones in streams or playing on certain pianos or running in certain shoes is essentially free advertisement. I paid for my Elgato Wave 3 and it looks great but also sounds great. When I use it’s essentially a 24/7 advertisement that I paid for but they profit from. Same with games: Fortnite, Among Us, Fall Guys – these games wouldn’t be as big as they are if it wasn’t for streaming. Demanding a license or extra money or a revenue share would be like shooting yourself in the foot.
But yeah, I’m comparing music and video games although things are inherently different, which is also my point. You cannot treat it the same and H. is basically doing exactly that, which is why I brought up the comparison. So, uh, the comparison and the ad absurdum there were the mechanisms to reach the conclusion that it’s bullshit. :D
Your thoughts on copyright are obviously true but that’s a question of agreements. If there was a license for streamers to earn money with the games they play, there could also be a license for paino men to play some songs in concert halls on pianos and athletes that have to pay for every race they win in those shoes. It’s stupid and absurd. It doesn’t make sense. I don’t see a difference in shoes, pianos and games if they all are used as a tool for entertainment, challenge or even content creation and work. It’s the tool you need to do something and if you suddenly start having to pay for a tool that you bought and that you need to work, then that’s just absurd. It’s silly.
As for copyright: When I buy a game, I cannot sell it as my own game because of copyright. So far so good. If you stream content on the game, you own the content because you’re transforming it. The trademarks and the game itself is still owned by some company that video of some guy talking about the new additions to MHW is owned by him because it’s his content. But I’m not a law expert nor a judge nor anything else, so based on the Terms of Service of certain games, shows, platforms, etc., there may be a difference. Usually people want streamers to play their game, though.
To sum it up: You agree with me and I agree with you. My “to take it further” point was just an ad absurdum (I’ll add that word to it because it didn’t come to my mind when I wrote the post) to show that the idea that H. proposes is stupid. The copy right stuff may be true but I’m not sure if it’s applicable. Overall, we agree with each other and I just defended the mechanism I used right there. :D Thanks for the comment :3
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I figured that you used the “take it further” part as a purposeful overdramatisation, but I couldn’t resist being a little smartass. Still, you are making a few false assumptions regarding copyright law. I hate to do this (no, I don’t!), but you seem to misunderstand some core points about copyright.
For example, you put both the piano and MHW in one pot, saying both are the “tools of your trade”. While that technically may be true, legally speaking there’s a difference. As I said, you cannot trademark objects, like pianos, microphones, or even CDs. Therefore, anything physical you own is fair game. But when you are playing a game, you are using the developers’ IP. Their story, the script, their code, their artwork/visuals, their music, their everything. They are the original authors (or rather, the studio they work for, as probably stated in their contracts), everything has been documented, and is present in a tangible form one way or another. They hold, without a shroud of doubt, the copyright to everything about their game.
Every additional software they used (the engine and whatnot) is not their IP, it’s the respective developers’ IP, and the game studio has bought (or found some other way of agreement) the written consent to use the engine developers’ IP, which is stated in the terms&conditions and/or the credits. Always.
With a purchase of a copy of MHW, even a physical one, you purchase the right to use the software (=the game) for your personal, non-commercial use. You do not purchase even a smidge of the rights to their IP, they are still in control of that. Therefore, you still need the written consent of the author (the devs) to use their IP commercially. If the devs say “I do not consent to people streaming my game” then that’s it. You are infringing their copyright if you still do it. So yes, the fact that you bought the game IS absolutely neglectable. Not only neglectable, but, legally speaking, completely irrelevant.
Look at it from the other perspective: If you bought a ticket to a concert, are you entitled to record, share, or even sell your recordings? You have bought the ticket, a physical object that allows you to experience another person’s IP (in this case, their songs). Even if you were a professional music streamer, and music was your “tool of the trade”, would you be allowed to “process” the music as you saw fit, without consent of the musician? Of course not, you wouldn’t even think about it.
Just because you need specific tools to do your job, it does not automatically mean that you are entitled to it. If you buy a car, you still don’t have the right to drive it, you still need to obtain your licence. The car’s buying contract still is perfectly viable, you can buy as many cars as you like without a driver’s licence, you just are not allowed to drive them without written permission from the state (=your licence).
Let me re-iterate: I am still on your side in this debate, I think streamers should not pay for licences to stream video games. I, too, think that it is stupid, and the status quo is the best solution for the streamers, the developers, and the audience. But this discussion is, first and foremost, about legal issues. Remember “doesn’t make sense” =/= “it’s not the law”. Even if, as you put it, it would be “like shooting yourself in the foot”. But, legally speaking, shooting yourself in the foot is perfectly fine :-) (DON’T DO THAT, THOUGH! NO! BAD MAGI!!!) It doesn’t make sense that I’m not allowed to ignore a red stoplight if I’m the only living thing within a 2km radius, but if I do it, I’m still breaking the law.
Fun fact (because you mentioned it): There is a licence for pianists (piano men, lol) to play in certain concert halls. They are called contracts, and they sometimes require the musicians to exlusively play in their contractors’ establishments. The other way around, it would be called rent. But that’s just an aside, as this has nothing to do with copyright. It has its part in this discussion, though, as it is quite the same as with your other examples: the runners and other athletes paying for their shoes.
As I said before, you cannot trademark objects. You can trademark certain objects’s names, like “Tesafilm” or “Uhu Superkleber” (you cannot, however, trademark the word “Uhu” on its own, it has to pertain to your business), but not objects themselves (exemptions would be, for example, art, where you have physical paintings or sculptures, but regarding copyright, these are basically just the “documentation” of your copyright claim). In the shoe-case (pun intended), the copyright-law does not apply, but the “Sachenrecht” (I don’t know the English equivalent). Another fun fact about the “Sachenrecht”, at least in Austria and Germany: Pets are, legally speaking, objects. So, if you killed someone’s pet, it’s technically not murder, but damaging of property (AGAIN, DON’T DO IT! BAD BOY!)
If you are the legal owner of an object, and not just the possessor (difference between “Eigentümer” and “Inhaber”), you have all rights to this object. To draw the parallel to the copyright: You have all rights to the object, NOT to the object’s design.
You say that if you stream content, you own the content because you transform it. Eeeeeeeh, yes and no. Yes, you do own the content (for example, the video you put out), but you may not have had the right to use the material used. As a comparison: If you steal wool from a shop, and knit yourself a vest, then you own the rights to the vest’s design (if you managed to trademark it in the first place, but that another topic), but you still stole the wool. Of course, the consequences would be different (copyright issues = your work gets taken down; Stealing = compensation for the damages), but the general idea is the same.
An exception from this would be a parody. Although, parodies are not exceptions from the copyright, per se, they simply count as original IP. Yes, they are based on someone else’s IP, but the parody itself was born from the parody’s creator’s own creativity, and therefore it is its own entity of IP and not infringing on anyone else’s copyright. There is a limit on what counts as parody and what counts on copyright infringement, although it is ridiculously low. But keep in mind that parody =/= no copyright at work. It’s the same with reviews, educational content, etc. The words you’re looking for are “fair use”. It’s not a get-out-of-jail-free-card, though! As far as I know, these cases *can* be a tightrope-walk and have to be decided case-by-case.
My last point for this comment (which I should send you an invoice for legal advice for xD) is about the terms&conditions. As I said before, many modern video games (and the devs of the softwares they use) state that with the purchase of a copy, you can basically do whatever you want with it, since they obviously think that streamers are a benefit to them.
Before 2010 (I’m pulling that year out of my ass, btw) virtually no game had anything like that in their terms&conditions, so technically you are infringing on their devs’ copyright anytime you stream an older game. Just because you are promoting someone’s work, does not automatically not make it a copyright infringement.
I know your content had not a lot to do with legal talk, and was more directed toward your thoughts and the logic of the whole ordeal, and as I have mentioned multiple times, I totally agree with you. Still, I just had to be a smartass and go full nerd with the law, because I think it’s in everyone’s interest to understand that logic and common sense have not always a lot to do with lawmaking. If I had a penny for everytime I discussed something law-related with someone and he said “But that’s dumb!” and I had to reply with “You are correct. It is dumb. But it is also the law.”, I’d have enough money by now to bribe the officials to rewrite the laws…
I really hope you learned something today and had a laugh with my fun facts! :-)