No. It's analogous to you sitting at a table and playing Monopoly, then uploading a video of that gameplay, only to have Parker Brothers hijack your ad revenue. Gameplay video differs from TV and movie uploads in that, for consumers, the latter is the goal itself –– to watch the TV program or movie. For a game consumer, gameplay video isn't the goal. Gamers want to play the game, not watch a video of another person playing the game. Yes, the gameplay video involves copyright protected content, without which one couldn't make this new content, and so there is the temptation to argue that gameplay video is a derivative work; still, gameplay video is very clearly within the spirit of Fair Use. This should be especially apparent in the case of YouTube game reviewers or game commentators. If it were not, then I suppose I would be infringing just by playing a video game in front of a bunch of people. The fact that gameplay videos are free promotions for game publishers probably shouldn't have much weight since it's anyone's right to decide how they want to promote their product, but in any case, the threshold at which Nintendo suddenly takes over is curious. How many frames of video must feature a Nintendo product before Nintendo can take the ad revenue? What happens if I'm a video game reviewer and I show clips of gameplay from both Sony and Nintendo content? Will that result in a threeway battle over ad money between Nintendo, Sony, and me?
