US copyright law needs to be reformed (feat. Liru)

Standard disclaimer: This post deals with both a hentai game and copyright law. If you’re under 18/don’t want to read about a hentai game, don’t read this, or at least don’t complain if you don’t like it. Also, absolutely nothing in this post constitutes legal advice. If you want legal advice, consult your own lawyer, because I’m sure as fuck not giving that out for free or letting anyone claim they relied on the stupid speculative shit I’m writing here. You probably already knew all this, but as usual I still have to write it. Now for the good stuff.

Here’s a game I’ve had sitting around for a while now. Starting this game up again raised a few unexpected questions in my mind. For example: what would happen to an American developer if he tried to sell a game featuring the protagonist boning a licensed character from an American property? If he didn’t have the license to use that character in his game, how quickly would the copyright holder’s attorneys jump on him? And should he even have to worry about that sort of thing?

If you don’t know what the hell I’m talking about, this is Ookami Shoujo to Issho, or Wolf Girl With You. It’s a doujin game that took h-game creator Seismic so long to make it turned into a joke, people online referring to the planned release for years as Wolf Girl Never Ever With You. But as you can see, it came out, because I played it. And it’s just what it looks like: a sort of slice-of-life thing where you return home every night and experience some domestic bliss with Liru, your happy and energetic werewolf girlfriend. Both Liru and the anime series she originally came from, Renkin 3-kyuu Magical? Pokaan, seem to be pretty much forgotten now, but I remember her being a big deal in the mid-2000s. That’s her normal outfit from the show in the title screen above, so you can probably see one reason why she was so popular, but she also had that animal-eared girl appeal. So it’s no surprise that I had this game lying around.

So Liru is your live-in girlfriend, and you get scenes with her, and they mostly either involve having dinner or sex. There are several scenes you can unlock depending on what you say to her when you have dialogue options available. It’s all very sweet and happy stuff, and you could even say it warms the heart a bit — sort of like Nekopara, only while Nekopara in its 18+ form was maybe 80% slice-of-life banter and 20% sex, this one flips that ratio around, featuring barely any story to speak of but a whole lot of fucking. Also, that model of Liru is animated and 3D, and there’s serious bounce there as you’d expect, and her lines are even voiced (though in Japanese only.) What more can you ask for, really.

I won’t put up any sex scenes here because I try not to just post porn on this site, but you can find them in five seconds with a Google search if you feel like it.

I guess Wolf Girl With You was so popular even among western fans that we got an official English version (note: link is NSFW for obvious reasons) which is otherwise not very common when it comes to doujin works like this. It’s honestly pretty easy to get the gist of what’s going on with minimal knowledge of Japanese, though. You might not really need any Japanese at all; it’s not a very complicated game.

Returning to the question of copyright I raised at the top, it’s pretty funny how a game like this can do so well for its creator in Japan — this is apparently the best-selling game ever released on the Japanese ero/h-game vendor DLSite. Here in the States, assuming the developer didn’t already have a license to use the character, I think there’s no way one or more threatening cease and desist letters wouldn’t have gone out from the corporate IP owner followed by a complaint in court if the C&D letter(s) were ignored. I’m not going to assume anything at all about what Seismic is doing, because for all I know his game is a licensed work. But there certainly are a whole lot of doujin artists who don’t have such licenses and are still able to sell their work.1

I much prefer this more relaxed attitude towards intellectual property and fanworks, and not just because I like hentai games about licensed wolf girl characters (as much as I like Liru, Holo is still best wolf.) Copyright law can and should protect the author’s right to enjoy the fruits of their labor, but there’s a limit to how far that protection should extend, and here in the States thanks largely to the efforts of certain massive media empires, that protection is extended much too far.

Original character do not steal

Codified at 17 U.S.C. §§ 101 – 810, US copyright law is designed to protect “writings”, a term that’s now broadly interpreted to include many forms of expression. As you might imagine, this extends to character creation. If you played Persona 5 (and chances are good if you’re reading my Megami Tensei-obsessed blog) you might remember a classroom question about Maurice Leblanc, the French author of stories featuring the protagonist’s Persona, gentleman thief Arsène Lupin, and also Arthur Conan Doyle’s famous character Sherlock Holmes. Doyle was understandably pissed off about Leblanc using Holmes and sued him over it. Leblanc lost, but in a response that puts modern-day trolls to shame, he simply moved one letter around, renaming the character “Herlock Sholmes”, and was able to continue selling his stories.

The saga of Sherlock Holmes-related copyright battles extended all the way to a US Supreme Court case in 2014, but the most relevant part of it comes out of that initial Doyle-Leblanc fight. Specific characters are protected by copyright, but broad character types are not. It’s pretty obvious why this is: if an author were able to copyright a certain style of character or story, everything would be protected by copyright and no one would be allowed to sell works without paying whoever holds that particular right, effectively stifling the creation of new fiction.

This brings us back to the case of Liru and the fangame she stars in. The Liru featured in Wolf Girl With You seems fundamentally the same character as the one in Magical Pokaan, right down to her personality quirks and the unusual outfit she wears. Yet it doesn’t seem like the maker has had any problem selling his work. The same is true of thousands of doujin artists who produce and sell fan comics twice a year at Tokyo’s massive Comiket conventions.

Under US law, these would very likely fall into the category of derivative works, which make use of copyrightable aspects of existing works (in this case, characters and sometimes elements of the world they live in) to create something otherwise new and original. The authors of such derivative works can claim copyright protection, but only for those original elements they add — the characters and other elements they borrow are not themselves copyrightable by the derivative work author according to 17 U.S.C. § 103(b).

However, although games like Wolf Girl With You and many of the other doujin games, comics, and fanworks in the market would almost certainly be considered derivative works, US law also requires that the author of the derivative work be licensed by the original copyright holder, not just to sell it, but even to produce it in the first place. To me, this is where the trouble starts, specifically with the length of time that copyright protection in the US extends. Because for works created and “fixed in a tangible expression of medium”2 on or after January 1, 1978, that protection extends for the author’s entire life plus 70 years, or in the case of multiple authors 70 years past the death of the last surviving author. And in the case of works made for hire, which would usually include works produced by a corporation, that protection lasts for either 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter.

There’s a complicated mess of other rules applying to works made before 1978, to sound recordings, and to works created under certain uncommon circumstances, but this is probably enough to illustrate just how long copyright protection lasts in the United States: for stupidly long periods of time. These periods have also been extended by Congress, thanks largely to political pressure applied by major copyright holders (Disney is usually the one “credited” in their efforts to protect Mickey Mouse from falling into the public domain, but they’re not the only ones responsible.)

This photo result I came across under the search term “old mouse” is the closest thing to a public domain image of Mickey I could find. Also, though they’ve produced some great films, fuck Disney now for both this and various other reasons.

I certainly support the artist’s right to protect their work. Hell, I should — I hold the rights to everything I’ve written on this site, and I’d be pissed if someone copypasted one of my posts somewhere without asking me, providing a link, and giving proper credit. However, that protection should have a more realistic limit. Compare the time periods listed above to those in patent law, which protects the exclusive rights over new inventions and processes for either 14 or 20 years from the date of filing for an application with the US Patent and Trademark Office. In these cases, the benefits enjoyed by the patent holder are protected, but not for a ridiculously long period of time. There’s good reason to protect patent for a shorter period than copyright (for example, to allow pharmaceutical companies to start making generic versions of brand-name drugs, hopefully at lower prices) but the century-plus copyright protections we now have are still extremely excessive.

Moreover, these periods have been continually extended by Congress, most recently in 1998, and there’s no reason to believe these extensions won’t continue into the distant future. It’s worth asking whether the interests of the grandchildren and great-grandchildren of the original artists in exclusively profiting off of their works outweigh the interests of the public in having works available to freely republish and enjoy without permission in the public domain.

Thankfully, copyright holders generally seem to tolerate unauthorized uses of their characters in the US and broadly online, at least when they’re not sold for profit, as with fanfiction. And sometimes even when they are — anyone who’s ever visited the artists’ alley in an anime, fantasy, or sci-fi con has seen hundreds of artistic depictions of popular copyrighted characters being sold without an army of lawyers descending upon the operation. Of course, it’s not like the copyright holders don’t realize what’s going on. Presumably most of them tolerate that much because cracking down would give them bad press, and perhaps they even see the use of their characters as a sign of their popularity and as an overall positive.

I spent four days of hell at the Baltimore Convention Center once, but I’d still do it again. I miss anime cons.

Even so, the copyright holders still hold the right to descend upon any artists who make unlicensed, unauthorized use of their characters. That right generally isn’t in question, even if an artist can successfully argue that fair use protects them in a particular case (which is a harder defense to sustain in these circumstances than many people realize.)3 The problem lies in the law itself, which has been repeatedly adjusted to ensure that most works made and published in the 20th century don’t fall into the public domain. As I see it, in this case as in many others, the individual right should be balanced against the social good — here, the rights of artists and their descendants to enjoy the fruits of those labors against the public interest in keeping old art alive and accessible. Which is certainly something I think government has a duty to regulate, instead of simply bending over for big copyright holders as they’ve always done. Not that I have any particular hope of that happening. It’s all about who has the deepest pockets, after all.

Which brings me back to Liru once again. As far as I know, she first showed up with the rest of the cast of Magical Pokaan when the original anime series aired in 2006, so the matter of public domain isn’t that relevant to her or to many other characters now used in fanmade works. However, the idea of the public domain and the benefits it provides to everyone does apply in this case, at least in a general sense. Even if there’s no question that the copyright holder has the right to prevent the creation of derivative works based on their character without permission, it can be to their benefit to have a permissive attitude towards the use of their characters by fans.

Of course, not every IP owner might be comfortable with letting people sell porn games starring their characters or even offer them to the public for free. That’s understandable, especially if they’re trying to maintain a family-friendly all-ages atmosphere (see Nintendo’s recent DMCA takedown of an NSFW Newgrounds game starring Princess Peach.) However, there’s something to be said for letting things go at a certain point. Speaking again of Persona 5, a few years ago Atlus received massive backlash for trying to strictly police streams of that game, even though they were arguably within their rights to do so. Perhaps as a result of this backlash, they seem to have eased up on such policies.

While that had to do with streaming and not the creation of fanart, I think a very similar principle is at work here.4 It’s really in everyone’s interests to allow plenty of leeway for fans to show their appreciation for the works they enjoy, which may involve the creation, display, and even to some extent the sale of fanworks whether licensed or unlicensed. There’s certainly a line to be crossed somewhere in this area — for example, if someone’s trying to pass off bootleg “official” merchandise — but I generally feel that if there’s no possibility of confusion over whether a work is official or fanmade, a more permissive attitude should prevail, and I hope that’s the new standard we’re approaching in the West.

Anyway, thanks for joining me for this serious legal analysis post. If you’re a staff member at Harvard Law looking for a new professor, send me a DM and we’ll talk.

As always, I’d like to know what you, the reader, think about this issue if you have an opinion. There’s clearly an ethical/moral element to this matter aside from the legal one, and I recognize that some creators might have reasons for wanting to maintain control over how their characters are used by fans. I’d also like to hear from fan artists if any are around, since a lot of my assumptions about how these laws are actually enforced here come from my secondhand perspective as a fan and buyer. And of course, I’m also interested in hearing from other fans like me. As usual, I don’t really have the answers — I only end up asking more questions. 𒀭

1 Here’s where I admit that I know nothing about Japanese law, so I can’t really comment on any potential issues that could arise in Japan over copyright matters. This is only going off of a possibly mistaken assumption that the fundamentals of copyright law in Japan aren’t that different from those in the United States. If they aren’t, then clearly at least the approach to enforcement there is very different.

2 This “fixed in a tangible medium of expression” requirement has its own whole complicated factors test that I won’t get into, since all the works we’re dealing with here are undoubtedly fixed in this way. However, in some cases, this requirement can place certain performances outside the scope of federal copyright law.

3 But note that if an IP owner sits on the right to enforce their copyright for a long time, they may end up effectively losing it — the doctrine of equitable estoppel lets the alleged infringer argue that since the IP owner knew and was clearly not bothered about the unlicensed use of their IP, they shouldn’t be allowed to suddenly change their minds about it. There’s a fundamental matter of fairness involved here; the idea is that other users may reasonably rely on the IP owner’s inaction as a sign that they’re taking a permissive attitude.

Like other forms of equitable defense, it’s absolutely not a sure thing, though. As always, every case has its own quirks and has to be taken on its own.

4 However, by contrast streaming is still in a gray area. I might get into the fair use doctrine and transformative art as they relate to streaming in a later post.

Games and the law #1: Nintendo et al. v. Soulja Boy (maybe)

Since I’m a lawyer and I like video games, I figured it would be a good idea to start a new series in which I analyze hot legal issues in the gaming world. My focus will be on American law, since that’s what I’m trained in, though I won’t ignore foreign law when it enters the picture.

This album sucks. I give it a 1. That counts as a full review, right?

In this first edition, we’ll be taking a look at a real gem: Soulja Boy. It’s long been an axiom that Soulja Boy’s music sucks, so much so that scientists are still working around the clock to determine how it hasn’t yet created a black hole large enough to swallow most of the inner Solar System. But this post isn’t about Soulja Boy’s music – it’s about his possible lack of knowledge of copyright law.

I don’t blame a guy for not understanding the ins and outs of US copyright law. It’s a complicated field. I do blame a guy, however, for not at least understanding that selling a console packed full of ROMs that are indisputably the intellectual property of first- and third-party publishers without a license to do would amount to criminal piracy under United States law. I assume Soulja Boy has attorneys to deal with the protection of his own intellectual property who are available to advise him of that. Maybe his legal team secured licensing agreements with every one of the copyright holders of the supposed 800+ preloaded games on his SouljaGame console and the supposed 3,000+ preloaded games on his SouljaGame handheld. That’s entirely possible, and I’m not saying it didn’t happen. But considering how defensive our dear Drako has been getting on Twitter… well, just read the following:

In a now-deleted tweet, Soulja Boy also noted that he’s “not afraid of Nintendo” nor of “faggot nerds” (his words, not mine.)

Not really the kind of thing you’d say if you had secured a licensing agreement with Nintendo, is it? Again, maybe he did and he’s just acting like a dick on Twitter for no reason.

Hey, to change the subject completely, were you wondering what the United States Code has to say about monetarily profiting off of someone else’s intellectual property without a license from the copyright holder? 17 USC § 506(a)(1)(A) states that “[a]ny person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed for purposes of commercial advantage or private financial gain.” The statute requires a finding of willful behavior – basically meaning that the subject of prosecution knew what he was doing and intended to do so – but establishing knowledge and intent in a case like this isn’t too difficult. And what kind of punishment does section 2319 provide?

(b) Any person who commits an offense under section 506(a)(1)(A) of title 17—
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.

The above-mentioned fine is set forth in 18 USC § 3571(b)(3) at not more than $250,000.  None of this counts the civil penalties that can be levied against the copyright violator in a separate proceeding.

Sorry for going off on a totally unrelated tangent like that. I just thought it was interesting.

By the way, these “SouljaGame” lumps of plastic dogshit seem to be pretty much identical to the myriad bootleg multigame consoles and handhelds that are manufactured and sold in Chinese and southeast Asian markets. Those systems are definitely illegal to sell, and the only reasons they continue to sell are the sheer number of different types of bootlegs sold and the difficulty of suing/prosecuting violators in the countries they flourish in. Hell, they even sell on Amazon. Like this fifteen dollar handheld containing hundreds of NES ROMs. There’s no way Nintendo signed off on this, but I can’t imagine they care too much about some podunk company selling crappy cheap handhelds with 30 year-old games on them, even if they are Nintendo properties. Soulja Boy’s products, on the other hand, have garnered attention all over the world. And if that sales figure of five million Soulja himself cited on Twitter is anywhere close to accurate, I can’t believe Nintendo (or SEGA, or EA, or Activision, or fill in the blank) is going to ignore them.

Just to be clear, I’m not saying that Soulja Boy is a pirate. I am legally allowed to call Soulja Boy a talentless asswipe, because that’s a statement of opinion and not a statement of fact or a legal conclusion. But I’m not saying he’s a pirate. Yes, it seems like he’s profiting off of the sale of what looks suspiciously like a pair of bootleg game systems containing a few thousand games, but again, it is entirely possible that he and his legal team ensured everything was legit by securing licensing agreements with each one of those games’ copyright holders. Here’s hoping they did for his sake.

Retrospective: After Dark

When I set up a Windows 98 virtual machine for the purposes of starting my godawful SimCity 2000 series, I also picked up a few different .iso files to run on it.  One of those wasn’t a game, but rather a collection of screensavers bearing the title After Dark 4.0 Deluxe, released in 1996 by long-defunct developer Berkeley Systems.

After Dark 4.0, which also contained a collection of screensavers from older versions.

What’s the big deal about a bunch of screensavers, you might be saying to your screen.  The big deal is that screensavers were very much “the shit” back in the mythical period of the late 1980s and early 1990s, when flat-screen computer monitors were unheard of.  At that time, everyone used CRT monitors, great bulky heavy things that made a satisfying smashing sound when you dropped broken ones out of a twelve-story window into an empty alleyway.*  The primary trouble with the CRT, aside from its weight and size, was the fact that images left on the screen for a long enough period of time would become “burnt in”, leaving faint shadows of themselves behind even when the screen was turned off.

In order to prevent this, the first screensaver was developed and released in 1983.  This screensaver and its immediate successors simply made a screen go black after several minutes of no activity, preventing the image of the desktop from being burnt into it.  By 1989, however, Mac and later PC users could avail themselves of After Dark, a program that contained a whole collection of creative, colorful, and sometimes bizarre screensavers. They were often customizable and occasionally even interactive – a few contained pretty fun mini-games. After Dark quickly became a massive hit – sort of the pre-internet version of going viral, in which more and more screens seemed to be running After Dark screensavers.  The 4.0 release was the final one, however; by the late 90s screen burn-in wasn’t really so much of a problem, and people apparently decided they were happy enough with the default Mac and Windows screensavers.  Berkeley Systems was sold soon thereafter and eventually folded.

Since screen burn-in certainly isn’t a problem for me today, on my flat screen running VirtualBox, I downloaded the After Dark 4.0 .iso file for entirely nostalgic purposes.  And since this is my god damn game review website, I can write a quasi-review of something that isn’t a game if I feel like it, and I do.  The following are my favorite After Dark screensaver modules, loosely ordered:

Bad Dog!

This module features a spotted black and white dog that jumps onto your desktop and starts digging holes, tearing components of your computer out, and making a complete mess of things.  I enjoyed watching this dog utterly destroy my family computer at home, mainly because the destruction was purely cosmetic and temporary.  I can imagine a few old folks panicking at this screensaver, though, if they didn’t know quite how it worked.  A nice prank to play on Grandpa, maybe.

For some reason, Bad Dog! turns my desktop red and blue on VirtualBox.  I don’t know why.  The screensaver isn’t supposed to do this.

Puzzle

Puzzle also wrecks your desktop, this time by turning it into a sliding-block game that never ends.  This is yet another good potential “let’s prank Grandpa” screensaver, though he’s probably caught on by this point.  I always wondered about whether the puzzle might somehow return the desktop to its original state at some point.  The odds of that happening are probably incredibly small.

Confetti Factory

A factory full of steel bars and conveyor belts collects falling confetti that builds up into multi-colored mountains.  Every once in a while, the factory staff goes on break, and ducks cross the screen while quacking.  Like many of the After Dark screensavers, it doesn’t make sense, but it is relaxing to watch for some reason.

Rodger Dodger

Rodger Dodger isn’t so much a screensaver as it is a game.  You are the purple-green morphing soccer ball, and your object is to get through all 20 levels by collecting the green squiggles and getting to the goal while avoiding the spiky hazards that move either in one direction or randomly around the game board. It wasn’t anything special really, but it was surprisingly fun for a mini-game that came bundled with a screensaver collection, and I’m sure many thousands upon thousands of bored, dead-inside office workers wasted some company time with it.  Just make sure to point your screen away from your boss and facing a wall so he can’t catch you goldbricking.

Rat Race

Rat Race is not a simulation of the soul-draining, suicidal-depression-inducing competition for material goods and meaningless honors that our society demands of us all, but rather of a literal race where rats are the contestants.  It’s fun to bet with your friends on which rat will win, and then to scream at the screen when it turns out you picked the dipshit rat who doesn’t understand that he’s supposed to run in one direction around the track instead of running in circles and grooming himself.  Damn it, Doug, what are you doing?  I bet five dollars on you.

Flying Toasters

Yeah, of course Flying Toasters.  Flying Toasters is maybe 99% of what people remember about After Dark and the company that developed it.  A flying toaster is on the box of the physical copy of After Dark 4.0 that I don’t own and was more or less the mascot of its developer.  The image of the flying toaster was featured in the 90s drama Beverly Hills 90210, and a band that somehow still exists and is touring named themselves The Flying Toasters.  The flying toasters even inspired a lawsuit against Berkeley Systems by members of the 60s-70s band Jefferson Airplane, who complained that the image of a silver toaster with wings was too similar to the winged toaster on the cover of its 1973 live album Thirty Seconds Over Winterland to not be a violation of its copyright. (They lost.)**

There were at least three or four versions of the Flying Toasters screensaver, each one more complex than the last.  The first was pretty simple – just a bunch of toasters with wings flying through a black sky alongside some flying pieces of toast.  By 4.0, the newest Flying Toasters screensaver included baby toasters, speeding toasters being chased by police toasters (complete with red sirens), toasters juggling pieces of toast between each of their compartments, toasters performing loop-de-loops and barrel rolls, and even bagels.  I prefer the simpler versions, myself.

Starry Night

My favorite screensaver ever.  Starry Night was on the very first After Dark release in 1989, and it was one of the most commonly used together with Flying Toasters.  Yellow pixels blink into existence eventually forming a city skyline against the night sky, full of multicolored stars, with an occasional falling meteor.  You can adjust the height and number of buildings on screen, which generate randomly.  Very simple, but very nice and relaxing to watch, especially on a dark night.

Unfortunately, screensavers are no longer much of a thing – who needs After Dark to waste time with at work when you have the internet?  Especially now that we have smartphones that the boss can’t prevent us from using.  Still, these were a small part of my childhood growing up in the 90s, and I felt like giving them a proper tribute.  If you’re interested in playing with these old screensavers, you can find a copy of the .iso file here.  You can also buy a physical copy online if you feel like paying someone for their old disc.  You’ll probably need to set up a virtual machine, though – I don’t think there’s any way in hell any modern operating system will run it.

* This is purely hypothetical and not something that we did on a drunken dare one night when I was in college.

** Jefferson Airplane v. Berkeley Systems, Inc., 886 F. Supp. 713 (N.D. Cal. 1994).  The court found that Jefferson Airplane could not properly bring a lawsuit against Berkeley Systems on the basis of copyright infringement because they hadn’t registered the image of the flying toaster on the cover of their album with the U.S. Copyright Office.  In general, copyright can be established without registration, but a suit for infringement can’t be sustained without it.  See 17 U.S.C. § 411(a).

Atlus places severe restrictions on Persona 5 streaming and recording; the internet loses its collective shit

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.

Going to federal court also costs $$$$$$$$$

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.)