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Fair Use Question of the Month: Can I post recordings of me playing a video game?

QUESTION:

Dear Center for Social Media,

I have a question that touches on point four of the Code of Best Practices for Fair Use in Online Video. I own and play a game called Audiosurf. The game uses songs as a base and creates game levels based on the properties of the song such as BPM, pitch etc. Each level is the length of the song chosen and the player plays it in a Guitar Hero like game play, with varying game modes changing how it's actually played.

Due to the difficulty of making a repeat performance of a perfect play in some levels, I make it a habit of recording my play sessions. These recordings then include not just me playing, but also the song used to make the level, which is integral for the construction of the level.

The main point of the video is me playing the level Audiosurf created for me from the song, not the song itself. Would this qualify as transforming the purpose of the song for a new context and would I be able to upload it safely under fair use?

Kind regards,

Jack

ANSWER:

Dear Jack

It's great that you've already taken a look at the Code of Best Practices for Fair Use in Online Video to try to figure this out, and it does seem like the way you want to use the video could fall under Category 4--"reposting in order to rescue an experience"--of the code. I think the thing to consider is the context of your video. Will it be clear to viewers what the point of your video is? Will it be clear that you've changed the song through your performance in Audiosurf? How can you best make it clear what exactly you've done, and how it is different from the original song? Also, is it really necessary for you to include the whole song, or can you use just a clip of it? Remember, it's only fair use if you're only using as much as you need to make your point, but not more.

Center for Social Media