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Many people make youtube history documentaries using recent closed source computer games to make the graphics. This involves playing the game as released, and using the gameplay graphics to explain the history. An example would be using a battle strategy game to explain the unit movements of a historical battle.

Do we know if this use is considered fair use? I assume that the game developers generally consider it to be free advertising, so it may never have come up in a courtroom.

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    What does "make the graphics" mean? Do you mean a person plays the game as intended and manages to explain history while doing it, or do they reverse engineer it to use it's resources outside of the actually intended gameplay?
    – nvoigt
    Feb 4 at 19:38
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    @nvoigt I mean the former, I have edited the question to make it clear.
    – User65535
    Feb 4 at 21:06

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(tl;dr: We don't know. It's probably okay legally if we take your example description at face value, and practically many companies openly or implicitly permit even less convincingly "fair use" videos, eliminating most legal concerns.)


US copyright law provides a fair use exception “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research... .” So at first blush your described example, of using a battle strategy game to discuss and demonstrate real-world historical examples, would fall under a fair use exception for educational purposes. However, the court standard for determining if this claim to fair use is valid uses a four factor test that holistically weighs and considers the following factors:

  1. Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

  2. Nature of the copyrighted work.

  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole.

  4. Effect of the use on the potential market for or value of the copyrighted work.

This analysis would be case specific. Perhaps the most immediate point of potential weakness in the claim to fair use would probably be the first point: e.g. is this channel actually trying to make profits (like a standard influencer or other YouTube celebrity typically would be), or actually operating as a non-profit educational venture. "History documentary" sure sounds like it fits the bill, but a court would examine the actual facts and behaviors to determine if this description holds water as concerns the claim to fair use.

An even murkier situation at present are "Let's Play" style videos, which are just people playing and talking about the game for its own sake. Creators of such videos claim this falls under the fair use exceptions as they are using it to create commentary on the game (and commentary is one of the listed reasons for a fair use exception). As such videos also use significant chunks of the game, however, there is the possibility they fail to qualify in part due to a consideration of the third part of the four factor test. The extent of usage would be weighed in part against the transformative nature and extent of the commentary added by the video's creator. To my knowledge no court has ruled on this issue. Some copyright holders will send DMCA requests to take down Let's Play style videos, but as a whole the gaming industry seems to have adopted the belief that allowing such videos to go unchallenged is in their best interests (either because of a "free advertising" belief, or because the outcome of a legal challenge seems too uncertain to justify the costs and PR challenges). Nintendo at first tried to stake a claim to money made from Let's Play videos of their properties, but later ceased and instead created an affiliate's program to split profits; Ubisoft openly permits usage for Let's Play videos, as long as the videos adhere to certain appropriateness guidelines; some games go so far as to have options to specifically disable things like licensed music so that streamers don't inadvertently fall prey to DMCA/copyright claims from other companies and artists; etc.

As such the legal uncertainties may essentially be mooted by company policies which already permit and/or enable the usage in question.

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