Yesterday, on April 4, Japanese game developer and publisher Atlus finally released Persona 5 in North America after two and a half years of delays. This much anticipated release came along with an announcement from Atlus forbidding the public display through either posted videos or live streams of spoilers, boss battles, or of any part of the game beyond the in-game date of July 7 (about three months from the game’s starting date, and probably about a third of the way through the story.) Both Youtube and Twitch are widely said to be on board with this policy, so if that’s true, punishments for rule-breakers will presumably get doled out in the form of bans.
Atlus’ policy is now causing much wailing and gnashing of teeth on the internet among people who had been looking forward to stream or to watch streams of Persona 5. This decision doesn’t affect me personally – I don’t stream because I’m not any good at games and I can’t add interesting enough commentary to make it worth anyone’s while to watch. And I was not planning to watch a stream of a game that I’m already playing myself. But I do find the drama surrounding Atlus’ decision really interesting. A lot of people are angry at Atlus, and some of them have been arguing that Atlus shouldn’t be able to prevent the streaming of Persona 5. The term “fair use” has been thrown around a lot.
So first of all – does Atlus have the law on their side in this case? The answer is almost certainly yes, at least according to US federal copyright law. Atlus holds the copyright to Persona 5, and outside of certain exceptions it can freely enforce that copyright to prevent others from using its own work to create their own public performances. But what about fair use? Fair use is an exception to the enforcement of copyright that applies to the use of existing works by a non-copyright holder for limited purposes. The four factors considered by courts to determine whether a work or performance is covered by fair use are listed in Section 107 of the Copyright Act:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
There seems to be no case law establishing any kind of precedent to apply to Let’s Play videos or streams, but we can at least apply the plain language of Section 107. When we do that, we find that the law is very much in the favor of Atlus here. The second and third factors weigh heavily in Atlus’ favor. (2) deals with the amount of creativity that went into the original work, which in the case of a video game, especially one as long, complex, and unique as Persona 5, is extremely high. Let’s Play videos and streams tend to run through entire games, so the same goes for (3). And the first factor weighs in Atlus’ favor if the video or stream is monetized through ad revenue or if the streamer is using his playthrough of Persona 5 in part as a way to attract paid subscribers and to gather donations.
The only factor that’s not clearly in Atlus’ favor is the fourth one. It’s not obvious that a heavily streamed game will sell fewer copies than a game that isn’t widely streamed, all other things being equal. In fact, you could just as easily argue that a heavily streamed game will attract more interest and result in higher sales. NieR: Automata was streamed like crazy and that game broke a million sales just over a month after its release. Obviously those streams didn’t have too terrible of an effect on the game’s sales. (Then again, maybe the exposure of cute android girl protagonist 2B’s butt had something to do with the high sales too.)
In any case, after reading Section 107, I would bet money that almost any court applying this test would find in favor of the copyright holder and would not find fair use, especially if the use of the copyrighted material is for commercial purposes. And while a Let’s Play video series or a stream might qualify as a derivative work under US copyright law, that derivative work has to be authorized by the original copyright holder, in this case Atlus. And Atlus is clearly not interested in authorizing shit right now.
Atlus very likely has the law on its side. But even so, was the severe restriction on recording and streaming Persona 5 a wise move? And was it wise to wait until the day of the game’s release to make that announcement? And was it wise to pretend that the stream restrictions are about avoiding spoilers, when they’re obviously about Atlus trying to sell more copies out of a fear that streaming would hurt their sales?
Will Atlus end up pissing away the goodwill it’s gained over the years in exchange for a possible short-term boost in sales? That’s a risk for Atlus to take if they choose, but I’d hate to see the company go down the same “fuck the consumers” path that certain other developers and publishers have, because Atlus makes games that I like. I’m already five hours into Persona 5 and it’s really good so far. If P5 keeps up the pace throughout I’d recommend it just as much as I would P3 and P4 to anyone, provided they don’t hate turn-based RPGs or games that are too anime.
The way things are going, though, there might very well be a test case in federal courts about recording or streaming games online some day soon. And maybe that test case will involve Persona 5.* That’s serious publicity for the game, but probably not the kind Atlus intended. Even if the law is on their side, good sense might not be. 𒀭
*Okay, probably not. But it sounds good, doesn’t it? Atlus v. Weeb Twitch Streamer et al. It could be a landmark case.
Edit (8/23/18): In the end, Atlus barely even enforced the stream ban. I watched a guy off and on who played the whole game through to the true end on Twitch and never got slapped for it, and last year there were a ton of people streaming the game on Twitch with presumably no consequence (except perhaps for DarksydePhil, who reportedly did get slapped by Atlus, though maybe they knew how much of a complete knob he is.)