Paying Nintendo Protection Money
The most egregious part of the Nintendo Creators Program is the pay share. Under current advertising share for an individual without an MCN contract, all money derived from advertisements that appear on a Youtube channel is split 55/45, with Youtube taking 45% revenue for your work. That’s already an extremely large percentage of gross profits, as even iTunes takes only a 30% cut from created app programs. By using Nintendo games and registering each video individually, Nintendo would take 40% of your 55% total from all advertising revenue, months after the fact.
It leaves this pay split: 45% goes to Youtube, 33% goes to the content creator, 22% goes to Nintendo.
To be fair, it’s roughly the same split that one would observe with a major MCN, replacing the MCN with Nintendo’s cut. However complicated and disappointing MCN’s are in particular, at the very least they help provide legal protection for managed partners. You are given the freedom to explore games content creation using video games from a wide variety of publishers, with the MCN striking deals in order to ensure your legal protection. They’re there to make money along with you.
The entire process is downright predatory on the Youtube gaming community…
Registering videos with Nintendo, however, does quite the opposite. You would be paying them for the right to use only one small set of developers/publishers’ games, no matter your popularity. What’s worse; some of the biggest Nintendo-published games aren’t included in the program. The current whitelist excludes notable recent releases, such as Pokemon ORAS or Super Smash Bros. for Wii U. Hell, you can’t even play any of the Super Smash Bros. releases!
While it is great to see the whitelist extend to classic releases, the entire library of eligible Nintendo Creators Program titles is embarrassingly lacking, even in its early stages. For Nintendo to be demanding 40% of your profits while being so restrictive of permissible games to be used for Youtube content is unfair. Not nearly as unfair, although, as the language regarding the pay share itself.
What truly solidifies my notion of Nintendo as a copyright bully over its Youtube content is the language used in their guidelines. Regarding Registration Rules, it clearly states (bold emphasis is mine):
"The advertisement revenue share is 70% for channels and 60% for videos. (This rate may be changed arbitrarily.)"
Therein lies the rub; even the most basic element of the system, in how much Nintendo decides to pay you for your content-creating efforts, can be changed on the whim by Nintendo. The use of the word “arbitrary” in a legal agreement, especially regarding money changing hands, is so baffling that it has to be a mistake. It’s a middle finger aimed at the talent, allowing them to control pay shares that the content creators do not agree to.
When you take all the information provided together, the situation looks like this:
In order for a Nintendo Creators Program-registered channel to use non-critical-review Nintendo content, you have to register your creations for Nintendo’s approval individually; a process which can take up to 72 hours. They reserve the right to decline approval, determine how much your videos make per month, how much to pay you for your content and what kinds of commentary will be accepted; all without your input. All this for the right to make Youtube videos using Nintendo gameplay (and, at the risk of paying them money for nothing, Nintendo games only). Plus, you don’t even have free reign to use all Nintendo-published video games available.
The entire process is downright predatory on the Youtube gaming community, with Nintendo leveraging their popularity as a gaming brand to cash in heavily on the brunt of content creators’ efforts with little/no help from their side.
What’s Fair, Then?
Look, creating Let’s Play and non-review gaming content is in a legal gray zone, no matter how you look at it.
The biggest argument from the Let’s Play community is that their works using video game footage is transformative in nature, as their commentary and their gameplay is wholly unique than what anyone else can create. Video games are interactive, and as such their performance would be, arguably, unlike anything else replicated in the market. Additionally, things such as “criticism, comment, news reporting…” are not considered infringements of copyright under US law. Under that definition, they would argue that it is under fair use to profit off of Youtube.
Then again, the rights of the copyright holder still have to be treated fairly. While the vast majority aren’t making a living off of making Youtube gaming videos, the amount of money made using Nintendo/any gaming company’s content, that doesn’t extend to parody or satire, is staggering. Even the likes of Mystery Science Theater 3000 had to pay licensing fees, although probably not anywhere close to 30%. Even if it’s in a publisher’s best interest to let Youtubers provide free marketing for their titles in exchange for not demanding royalties, it’s their decision what to allow with their copyrights.
What people tend to leave out of their rationalization on the matter is the rarely-spoken-of third party: Google/Youtube. In an untethered Youtube partnership, they are making 45% of all advertising profits from said videos, regardless if you or the copyright holder claims ownership over the remaining 55%. It’s kind of surprising how they’re the only party guaranteed to make a profit, but it makes sense; nobody is going to sue Google over this matter. A copyright holder, if anything, would sue the infinitely smaller content creator if push came to shove, even if it meant risk of creating a precedence over using such content.
To find a fair revenue share between the three parties would mean to fundamentally change how Youtube handles their business model. It would extend to beyond Nintendo’s scope of handling their copyright, as all publishers would be affected. It would involve how game publishers draft up their contracts with those that create their musical compositions in games, as to avoid problems with Content ID in the future. Ultimately, it would mean sacrificing a bit of profitability from both Youtube and the content creator in an effort to restrict the amount of hassle from the copyright holder in the future.
I would propose a 50% content creator/40% Youtube/10% copyright holder revenue share split, with the option for copyright holders to opt out of receiving anything. In exchange, any and all gaming content that doesn’t exploit the regular parameters of gameplay (reverse-engineering the game, exploiting debugs that weren’t intended for release, etc.) could not receive takedown notices, nor have money taken away from third-party claims.
This plan set forth by Nintendo pushes away rational gaming content creators from abiding by these asinine restrictions.
I know that it’s unreasonable to expect that proposal to come to fruition, but I find it to be vastly more fair than what Nintendo proposes to do. Both creator and Youtube taking a small pay cut shows an equal sharing of responsibility for funding licensed content. It removes Nintendo from maintaining control over the message that others wish to share about their content. Receiving 30% of a third party’s funds for “allowing” them to play video games under an arguably-fair-use understanding of the law doesn’t make sense, but a 10% share (with 5% at the expense of the Youtuber) seems fair. No party is completely left out in the cold.
The reality of the situation is that Nintendo won’t abide by that proposal. Their chief concern is maintaining the respectability of how their IP is portrayed; it’s the main reason why they’d rather shut down than go down the third-party publisher route that Sega did. The Nintendo Creators Program is the latest example that Nintendo out of touch with the current gaming climate.
The Nintendo Creators Program is the latest example that Nintendo out of touch with the current gaming climate. 6 billion hours of video is watched on Youtube every month. That’s likely tens, if not millions, of hours a month spent on watching gaming content on Youtube.
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This plan set forth by Nintendo pushes away rational gaming content creators from abiding by these asinine restrictions. No other publisher in the Youtube gaming community that allows Let’s Play and relevant content dares to impose these restrictions, as it results in negative public relations feedback. Even worse, doing so would restrict publishers’ ability to help spread viewership of their game in an ever-increasing content market that is competing for the consumer’s attention and, eventually, dollar.
Nintendo thinks that, somehow, Nintendo is above what others are doing, and that can control their online video gaming content in a way nobody else can.
In other words, Nintendo gonna Nintendo. Even if it is to their extreme detriment.
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