Let’s Plays and livestreams are popular online videos of videogames being played. The Copyright Act protects videogames as audiovisual works, and therefore provides videogames with the exclusive right of public performance. The Supreme Court issued a ruling in ABC, Inc. v. Aereo, Inc. which clarified that performances in an online setting can be public even if the individuals receiving the content are doing so privately. However, the Court’s holding did not provide guidance on who is a performer, and therefore is liable for the infringing conduct, beyond the specific context by which Aereo transmitted content to its subscribers. Let’s Plays and livestreams are public performances of videogames because they involve the playing of the videogame and are made to be viewed by the public. There are several categories of people who may be performers of a Let’s Play or livestream: the creator of the video, the poster of the video, the website that hosts the video, and the person who causes the video to be played. The creator, poster, and website hosting the video are all public performers, and therefore are liable for the infringing conduct. However, the person who causes the video to be played generally causes a private performance instead of a public performance, and therefore is not liable for the infringing public performance.
Brianna K. Loder,
Public Performance? How Let's Plays and Livestreams May Be Escaping the Reach of Traditional Copyright Law,
15 Wash. J. L. Tech. & Arts
Available at: https://digitalcommons.law.uw.edu/wjlta/vol15/iss2/2