Yes it can. As the popularity of internet streaming soars, content creators are encountering unique legal issues related to the media that they use. In June 2020, Twitch received thousands of so-called “takedown notices” under the Digital Millennium Copyright Act (“DMCA”) related to multiple archived clips that contain copyrighted music. The Recording Industry Association of America (“RIAA”) owns the copyrights to many popular songs and is responsible for this DMCA blitz. This situation has prompted many questions from the streamer community, and so I have created this FAQ in response. If you have more specific questions regarding your situation, please reach out directly to set up a personalized consultation.
Q: What exactly is the issue with playing music that I paid for?
A: The issue is copyright law and the fact that that most streamers don’t have the right license. When you purchase a CD, download a song from iTunes, or subscribe to Spotify, you are only buying a personal use license for the songs. Remember how making bootleg CDs is “piracy” and illegal? That’s because your “ownership” of a song does not include the right to reproduce it. It also does not include the right to play the music for the public. When you hear music a gym, restaurant, or retail store, they have obtained special “public performance” licenses, which are more expensive.
Q: Are they really going to sue me? Even if I’m not making any money?
A: They might. Under U.S. copyright law, the copyright owner may sue to get an injunction (an order to stop doing something from the court), and in addition to actual damages, get statutory damages, as well as costs and their attorney fees. Under the law, infringement is still infringement even without profit or monetary gain. If a court finds that the infringement was willful, statutory damages can be up to $150,000.00. Also, under the Twitch terms of service, three DMCA notices against your account is grounds for a permanent ban from the platform.
Q: Why is Twitch so concerned with what I am doing?
A: Because they may be liable as the host of the copyrighted content. Under the DMCA, Twitch can avoid liability as the host if they act in response to a “takedown notice.” That is why they have been actively mandating mass clip deletions in response to the DMCA notices they have received. It is generally easier for a copyright holder to target the host like Twitch or YouTube than the streamer. The host has incentive to act in order to take advantage of the “safe harbor” under the DMCA, and if the host doesn’t act, the host has money to pay any adverse judgment obtained by the owner of the copyright.
Q: Isn’t my playing music “fair use”?
A: Probably not. The “fair use” exception to copyright infringement generally protects reproduction for criticism, comment, educational use, news reporting, scholarship, or research. When music is played to accompany a streamer’s gameplay, the music is not being used for any of these purposes. Whether or not something is “fair use” is a fact-specific inquiry, but generally playing a soundtrack to your gameplay is not going to be considered fair use.
Q: Isn’t the video game itself also protected under copyright law? Do I need a special license to stream the game itself?
A: Yes, the video game content itself is protected as well, but streaming it likely qualifies as “fair use” and is exempt from infringement actions. Most streamers commentate their gameplay or the gameplay of others, so the use of the copyrighted content – the video game – is likely permissible. Remember however, the “fair use” analysis is fact specific and will depend on the nature of the game, the commentary/criticisms, and the other factors listed in 17 USC 107. So in most cases, no special license is required to stream video games.
Q: I’m confused. I have seen rhythm and music game streamers get taken down – why are they not protected by “fair use”?
A: Each “fair use” situation is fact specific, but it is likely that these rhythm or music game players are not using the copyrighted work for commentary or criticism purposes. It is not enough to simply broadcast yourself playing the game. Running commentary or criticism is needed to make a plausible “fair use” argument.
Q: As a streamer, what can I do?
A: Twitch is actively working to give its streamers options. Recently, it has launched Soundtrack – a product that allows streamers to run a separate music channel during the broadcast. The artists and labels available are limited, but gives indie artists more potential exposure. Of course, the RIAA is fighting Twitch on this product too, claiming that Twitch needs synchronization and mechanical licenses for its Soundtrack tool. The fight continues.
Q: I am a podcaster. Can I play music during my podcast?
A: Unless you hold the copyright to the music (i.e. it’s original) or have the right license, no. You face the same issue as streamers do when they play music in the background of their game streams. Music you buy on iTunes or stream through Spotify is not licensed for public performance like your podcast.
Dan Artaev is an experienced attorney who is an avid gamer himself, and who has advised gaming companies regarding various legal issues, including intellectual property rights. Have more questions? Contact Dan by email at firstname.lastname@example.org or by phone or text at (269) 930-0254.
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