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Originally Posted by Hayzeusky
Well I uploaded a replay from osu (mania) and It got claimed the the rightful owners of the song that was used in the video. Obviously I know for a fact that osu and games like it that don't produce original content do not fall under fair use, but it made me wonder at what point is does transformative stop and infringement begin. It seems like such a grey area and maybe someone here is more "Versed?" in law. (Also for a note to people wondering the video is muted. I'm not dumb enough to dispute something that's right.) (Side Side note i'm about to fall asleep so if anyone comments I won't be seeing it for like 6-8 hours lol)
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There is an argument to be made over if gaming content should fall into a fair use category.
Say I take a song, and cut it from 3:50 down to say 1:30 to chart it. I then take said chart and create a video that showcases my work, and then I commentate a play through of it. The commentary covers both the song's strong points, and weak points, and how the chart reflects the music through that. Maybe you also showcase specific parts of the song you though you charted really well.
Congrats, you've arguably taken a large thing, and transformed it into it's own unique content, which doesn't touch on the original product, in this case, it takes the song and not only shortens it, but it also makes it so you can't say steal the mp3 by ripping the video because of the talking, and the sounds of you playing the game should you choose to leave them in.
It's no different than clipping a movie down to sections, and commenting over it.
Ergo, a properly made osu video in this style could be argued to be fair use. Not gonna say it is for sure, but there's at least a legal argument to be made at that point.
(I'm not versed in law, but this is based off seeing videos from say h3h3 and jim sterling, along with a person with a law degree discuss the h3h3 lawsuit which is a good example that sets some great legal precedent.)
The idea of fair use it to protect either critique and analysis, parody, or to allow someone to take a work and make another derivative non-invasive work out of it. It becomes infringement when you're using bad motives, or when you haven't taken the steps to make it your own.