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So one of my younger friends has this Youtube channel (which luckily hasn't been deleted) where he has showcased this game that hasn't been commercially available for almost 12 years1. He is able to do this only because he has a device which still has this game after around a decade.[note 1]

Now, while there are only three videos of the game that he has uploaded, I wonder if there can still be a copyright infringement problem caused by these videos.

I feel like this would be a problem if the company that originally made the game brought up a lawsuit against my friend. This could probably happen because the game is not commercially available, so technically (although I don't really know) it could be illegal to own a copy of it.

So my question is: Is it illegal to make videos showcasing games that are no longer commercially available, or am I just overreacting?

Notes

[note 1]My friend originally got the game through legal methods in early 2012.

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  • An unplayable video of a game is not a complete copy of the game itself, so I doubt it would be a copyright issue, but there might be a problem with trademark infringement - especially if his YouTube channel is monetized. (and as @LjL noted, certain elements are copyrighted such as graphics and soundtrack)
    – Michael Hall
    Commented Feb 7 at 20:10
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    It is by all means not illegal to own a copy of a game that just so happens to no longer be commercially available, if you got that copy legally, of course! Whether you can "showcase" it is another matter entirely and not strictly related to whether or not it's still commercially available: it may be fair use, or it may not be, depending on specifics.
    – LjL
    Commented Feb 7 at 20:11
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    @Michael Hall the graphical elements and soundtrack of the game are copyrighted...
    – LjL
    Commented Feb 7 at 20:12
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    That discord link looks fishy to me.
    – Trish
    Commented Feb 7 at 20:47
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    FWIW, without weighing in on whether that's allowed or not, "commercial availability" is not really relevant to any of the legal issues.
    – ohwilleke
    Commented Feb 8 at 21:27

1 Answer 1

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All game streaming without permission is problematic

All video games, whether current or obsolescent, are protected by copyright. By recording the playing of a video game, the player(s) are making a derivative work and that is prima facie copyright infringement.

In the United States, the player(s) might be successful in a fair use defence. This could very well be successful because watch-it-played videos are not direct competition for playing the game itself, and arguably promotes the game itself. It may also be that streaming an off-market game has a better fair use defence because there is no market for the game.

However, outside the US, this defence is not available.

Just because no game company has yet sued a streamer, doesn’t mean it wont happen tomorrow.

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    talking and commenting the game would possibly make it an even better protected "commentary and critique", which usually enjoys some protection internationally.
    – Trish
    Commented Feb 8 at 21:19
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    Note that some game companies go out of their way to facilitate streaming, for example by offering a “streaming mode” that will disable the playing of in-game music where someone else owns the copyrights (e.g. Cyberpunk 2077), and that would surely constitute de facto permission to stream such games (with that option selected).
    – Mike Scott
    Commented Feb 9 at 7:56

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