Nope. If I play a baseball game or song at my bar, there’s no derivative work involved. If I play a movie at my theater, same thing.
I don’t think that simply showing a copyrighted work consititutes a significant transformation in the copyrighted work. And I don’t think it’s productive for two non-lawyers to argue something that’s a pretty intricate legal point in an area that has not had any definitive legislation or litigation, so “I don’t agree with your characterization of it as a derivative work” is really all that’s sensible to say.
Their objection would be to the game being shown, they aren’t claiming copyright over his audio track commentaries, which he is still free to sell or show without the game footage involved. That’s actually how RiffTrax deals with selling mocking commentary of movies that they don’t have the rights to, they sell only their audio track and require a person to have a proper copy of the video if they want the context for the jokes.
Actual contracts do not require a lawyer to be involved, so I’m not sure what you mean by ‘lawyer stuff - actual contracts’. The idea that contracts cannot be broken if they don’t have a specific revocation or sunset clause is counter to pretty much the entire history of contract law in the US and in the English Common Law that fathered the US legal system in 49 states and the federal government, you can pretty much read anything about contract law if you want to see precedent for breaking contracts without a sepecific revocation or sunset clause.
Of course you can make a contract without a lawyer. You can defend yourself from a murder charge without a lawyer, too. It depends how complex you want to get with a contract.
And yes, you can break a contract at any time. Then you go to court - with or without a lawyer - and argue over what the damages should be for failing to live up to a contract. if the agreement (contract) did not have an exit clause, then you may be liable. “the entire history of contract law” revolves around what is taken into consideration to settle a contract dispute, that is, one or both sides failed to live up to their conditions. (Or at least, the other side believes so). You might escape damages if you can declare “force majeur” but I’m thinking “I don’t want to do this any more” does not qualify.
That’s why serious agreements should have a lawyer involved. If it costs you more to break a contract than it would to have a lawyer write up the contract originally to avoid such damages, then… false economy. (Why do you think those EULA’s are pages and pages of fine print? Covering these sorts of possible issues; right to end with reasonable notice, morals clause, if it doesn’t work it’s not our fault, etc.)
Can you give an example of a contract that one side could break unilaterally, causing damage to the other side’s interest, and not end up paying for it?
Making contracts without a lawyer is much more routine than defending murder charges without a lawyer. I’m not sure why you’re trying to paint making a contract without a lawyer as something weird and unusual, but making a contract without a lawyer involved happens all the time. If you loan a friend money and they agree to pay it back, you’ve made a contract. If you talk to someone about doing work on your house, and come to a verbal agreement that they will do it for a price, you’ve made a contract.
It’s utterly routine for one side to break a contract, refund money the other person paid them (if there even is any), and that’s the end of the dispute. This happens all the time when a contractor will agree to work on a house, then have scheduling issues, so back out of the job. Absent unusual circumstances or a more formal agreement, as long as they didn’t take money or refund any money they took the person contracting isn’t going to get ‘damages’ from them.
Of course you can make contracts without a lawyer. People do all the time, for routine agreements where the terms are understood by both sides. Buying something in a store is essentially a contract.
Employment contracts come with the understanding that the local labor standards laws determine the terms of cancellation (which however are also usually spelled out if there is an explicit written contract). In some cases, the terms are in dispute and it goes to court - what is “reasonable notice” for example in some places.
If you contract with someone to paint your house, and he goes and gets 20 gallons of bright pink paint mixed up for the job, and you cancel - you’ll pay for that paint, unless you can show he should not have gotten paint that early or something. Generally damages for a contract being broken are the costs that result from the broken contract. If you contract to move someone, and back out last minute - they may have a case for the cost of hiring a new mover last minute. Or you hire the contractor, and back out last minute, and he lost out on other work based on your commitment. But yes, a deposit is generally the indicator between “considering” and “committed”.
Again, a lot of these cases depend on terms, precedent and reasonability. How firm was the agreement? Was the preparatory expenses necessary and reasonable? How likely was it to replace lost revenue? (Duty to mitigate) And so on…
it’s one thing to break a simple contract that has decades of precedent behind it, like house repairs. It’s another to get tangled in ground-breaking uncharted legal arguments. That’s a good time to get a lawyer.
The game publisher, for example, may not have realized the can of worms they were opening if they gave a poorly worded permission.
Permission is NOT a contract. Walmart (for example) implicitly grants the public permission to visit Walmart owned property during store hours. They can revoke that permission at any time, for any reason (absent laws to the contrary (e.g. anti-discimination)).
A contract requires some act of acceptance, and an equitable trade. And while there’s a shit-ton of wiggle room in the ‘equitable’ part, a contract will define what is being exchanged for what.
The section of law I referenced earlier calls it a “grant”, which can be a gift, part of an exchange/contract, or something else. If it were some sort of contract, the USC would say “contract”, “agreement”, or the like. The fact that Congress chose the word “grant” implies they intended permissions to be treated as a form of property which can be traded, given, etc., and not as a service (which generally does involve a contract).
I fail to see the relevance, since neither of those is a performance (unless by “play a baseball game” you mean that you have a bat, ball, and bases in your bar, but then I’m not sure what the original work is supposed to be). On the other hand, if the Cleveland Symphony sits down with some sheet music and plays a song, that’s a performance and a derivative work of the composition.
That’s the whole point. Is this a grant or a contract?
There’s no question of the acceptance. Both sides have knowingly allowed the activity for a while, implying acceptance.
The argument is that the game writers are getting a benefit (consideration) in return of free publicity. This is the key to the case It depends how persuasive the lawyers are and what precedents they dig up. “Equitable” is a nebulous term, but purchased publicity can cost a fortune.
The counter argument is it’s a grant and therefore can be rescinded at any time.
3 years and several hundred thousand dollars later, someone might get an answer from the courts. If the writers lose, they could be on the hook for lost revenue to the player. If the player loses, he’s spent a fortune on lawyers for nothing and he (probably) does not have deep pockets.
(Again - accessing the premises of WalMart is a permission, with a long history and assorted laws attached; everyone knows they can be banned under some form of the “Petty trespass act” or whatever that jurisdiction calls it. There are conditions implied and rules posted at the door stating conditions. Walmart gets no benefit unless the visitor buys something, so no consideration. Federal law prohibits discrimination against protected classes in this permission…etc. So anyone with the least bit of self-awareness in society knows what the situation is.)
Arguing that Let’s Plays where they actually add stuff to the content are not derivative works strikes me as silly. Let’s Plays are not merely people sitting and playing the game, but people commenting on the game as they play.
There are some forms of content where people do just stream the game itself. And they do sometimes call them “Let’s Plays.” Those I could see being just performances. But that’s not what Pewdiepie did. The point of his streams is to watch him saying the things he says. (And that is why I don’t watch his stuff. He’s never been interesting.)
Using a work inside of another work is usually considered a derivative work. I see no reason why this would not apply here.
By a performance I mean doing what is called a ‘public performance’ of the work under copyright law, the relevance is… that’s what’s being discussed. Playing a movie or a recording of a baseball game for people to watch in a public space or where admission is charged is a ‘public performance’ of that work, and generally requires a specific license distinct from basic consumer license. It’s frankly a bit weird to use copyright-specific terminology like ‘derivative work’ but to act like other copyright-specific terminology like ‘public performance’ is somehow unusual, and insist that ‘performance’ must mean only a limited definitions that’s not normally relevant to copyright law.
Here’s a few pages that discuss public performance of recorded works in the context of copyright law by organizations that make their money through copyright law if you think I’m just making up the use of the term:
The termination clause does not mean that a license can’t be terminated. It’s about transfers of rights and licenses that have an EXPLICITLY long term.
What it’s for is if an unknown creator makes a bad deal early in his or career, he or she gets a chance to terminate that deal 35 years later and seek better terms.
It absolutely does not mean that a license to use a work can only be terminated after 35 years. Licenses that don’t have explicit terms aren’t implicitly permanent.
And the “grant” spoken of in the termination rights clause is referring to conveyance of some or all of the rights held by the copyright owner. In other words, it’s about transferring ownership rights. There’s no way that applies to Let’s Play videos.