Nintendo announces its new 'Content Creator Policy' - what does this mean for Lets Players?
Okay, so I missed the boat on this one by **counts on fingers** a few days. But I thought it would be crazy to leave Microsoft’s T&Cs update as the most recent post on this blog, seeing as Nintendo have come out and one-upped them in terms of ambiguity in their drafting.
The new rules from Nintendo mark a departure from their old informal policy of simply removing YouTube videos that used their game footage on grounds of copyright infringement (on which, see my other post). Under their new rules, YouTubers have two options to pick from in order to ‘officially’ keep the revenue (or at least some of it) generated from their videos:
Registering your channel
You may be asking yourself why anyone would choose option 1 over option 2 (since that involves more work for each video released and you get less £) but that’s because of this little gem in the T&Cs in relation to number 2:
“When you register a channel, you will be eligible to receive a share of advertising revenue from Nintendo for all videos included in that channel, regardless of their content. If you only want some videos to apply to this program, please register each video individually.”
Whether or not this is intentional, or simply some poorly worded drafting, this implies that Nintendo will claim a % of the income generated from all of your videos on your channel, whether or not they are of a Nintendo product.
My first thought was that this can’t be what was intended – why on earth would they consider themselves entitled to (or anyone would agree to give up) revenue generated by a video that doesn’t even feature their product. I was thinking, surely they meant to exclude completely any non-Nintendo videos from the program, so that the YouTuber still retained 100% of the revenue.
But the addition of the phrase “regardless of their content” adds a lot of ambiguity to this. Being very flexible with my interpretation here, I see two possible ways of reading this:
While I love to give people the benefit of the doubt, I can’t help but land on the first interpretation – that they are trying to take a % of all of your videos. I’m led to this conclusion even more because of the phrase “If you only want some videos to apply to this program, please register each video individually,” which I read as “If you only want [Nintendo content videos] to apply to this program.”
But then there’s a further statement that confuses everything:
“Be sure your videos do not contain copyrighted material from third parties or content from unconfirmed game titles.“
What? So now they’re saying that you can only register your YouTube channel if it only contains Nintendo videos? How on earth does that work? It’s very unlikely that anyone except the very biggest YouTubers would be able to make it worthwhile to create and maintain a Nintendo-only channel. This means that they won't take a cut of your non-Nintendo videos, but it also means you can't register your channel unless it's Nintendo specific. Are there really that many people out there doing that?
Update - This is confirmed by a later post by Nintendo that states "If a video within your channel contains game titles outside of the list of supported games, please remove it from the channel before registering."
So this leaves YouTubers in a bit of a difficult situation: (i) don’t join the program, but still upload your videos, risking them being removed under DMCAs; (ii) register individual videos of Nintendo games, but taking a 40% pay-cut in doing so; (iii) register your channel, thereby losing 30% on all your videos; or (iv) simply stop uploading Nintendo footage.
Several prominent YouTube personalities have already taken a stand against this including PewDiePie and TotalBiscuit, and there’s a whole bunch of other problems with this such as what Nintendo games this even covers (the only recent one of note being Mario Kart 8) and how long it takes to get paid your share of the revenue!
This just seems like another move from a company that often feels like it is lagging behind the times, especially when it comes to the internet, failing to understand the benefit that YouTube videos can bring to a game.
While they’re legally entitled to do whatever they please (YouTubers can freely enter into a contract to give away 30% of all their revenue if they want to) I think there’s a wormhole of problems waiting to be unravelled due to the ambiguity in the language, which may lead many to sign up to something they did not intend to.
While I said let’s wait and see how Microsoft’s terms are enforced to see whether or not they are reasonable, I think it’s fair to say straight up that these terms seem very unfair and completely ambiguous. Well, perhaps not unfair, since after all it is their property that you are using in your videos, why shouldn't they take a cut, but it just seems so out of sync with how YouTube actually operates. I would strongly recommend everyone considering whether or not to sign up to this program to carefully read the T&Cs to ensure you’re aware of exactly what you might be giving up.
Update - Nintendo recently released a statement saying they are receiving more applications for channel registrations than they were expecting and are struggling to cope with demand. This means there's either a lot of people out there running Nintendo-only channels who are happy to sacrifice 30% of their income, or a lot of people who don't read the terms and are about to get burned...
Header Photo: (c) owned by Square Enix - thanks for making Vivi so awesome!