News Article

Nintendo Revenue Claims on Mario Kart 8 YouTube Footage Reportedly Underway

Posted by Thomas Whitehead

An expected development

Just over a week ago Nintendo confirmed that it would be offering an affiliate program for YouTube, in which it would offer tiered packages to content producers that would share ad revenues between Nintendo, Google and the channels in question. After the controversy following the company's heavy-handed claims of revenue in mid-2013, this seemed like a logical middle ground between making no claims and sucking all profits from videos featuring Nintendo products.

That affiliate program is yet to be detailed, yet within that announcement Nintendo also made clear that it was beginning to process of, once again, claiming revenues from videos featuring its products. In what seems like an unfortunate overlap of pursuing claims before formally offering an alternative, an early report of a claim on a Mario Kart 8 video has come out, and will likely be followed by more; the claim was by Nintendo and based on the presence of the game music. There are suggestions that prioritising voice-over or using other sound may help avoid these claims, but it's also possible that Nintendo will search for content based on footage regardless.

Clips uploaded from Mario Kart TV are, unsurprisingly, likely to be encoded to automatically direct any revenue to Nintendo; it's unlikely that any of these relatively generic clips will 'go viral', in any case. This move by Nintendo does seem odd from the perspective that Nintendo could strip incentive away from consumers that are providing valuable exposure for their products — a current example is the Luigi death stare video that's gone viral and received press attention. While that video doesn't appear to be claimed, it can be argued that a policy of claiming ad revenues will encourage YouTube users — particularly those that make a living from the platform — to focus on games by companies that don't seek any of the advert money. Why devote attention on directing hundreds of thousands or millions of subscribers to Nintendo games if the big N is going to take a cut?

The flipside is that these are Nintendo products, and it has a right to claim these revenues. The affiliate program could potentially be a wise move to establish fairness and not drive away vital content on YouTube — which costs Nintendo nothing to produce — that can provide vital awareness and word of mouth. Perhaps some content — depending on size of channel etc — won't be eligible for the affiliate program, but it nonetheless seems like a poor public relations move to claim ad revenue before the details are given.

We await details on the affiliate program, but let us know your thoughts below.


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User Comments (61)



BossBattles said:

Luigi' Death Stare is the kind of thing that can make or break the perception of the company right now. They should not step on it.



Yoshi said:

I agree with the claiming of videos created with MKTV.

I'm still on the fence about this affiliate program that Nintendo is talking about. We'll just have to wait and see.



AlternateButtons said:

I'm starting a Let's Play channel with a friend of mine this fall, so I'm very interested in this affiliate program. I just hope it's fair. If not, then they can just take my money. I just love entertaining people. I'll look to Non-Nintendo games for revenue.



Gashole said:

None of this surprises me, considering Nintendo is DESPERATE for money right now.



SilentHunter382 said:

While I don't agree with Nintendo taking revenue off youtubers that upload content for any of there games since it is free advertisement for there games.
I bet there were a few people who bought a Wii U and MK8 after seeing Luigi death stare.

While I would be fine with them talking a small bit of the revenue from youtube videos that were uploaded through the Mario Kart tv since they did use the service to edit the video and upload it to youtube from it.

If Nintendo takes a fair cut of the revenue from people and they released a game without any marketing, a youtube could upload a video about that game and could turn that game that sold 100K to 1 Million sales but if they take majority of the revenue (like 80% for Nintendo and 20% for uploader) then people won't bother uploading content.



DarkKirby said:

it can be argued that a policy of claiming ad revenues will encourage YouTube users — particularly those that make a living from the platform — to focus on games by companies that don't seek any of the advert money. Why devote attention on directing hundreds of thousands or millions of subscribers to Nintendo games if the big N is going to take a cut?

That's exactly the problem, as almost no other large well established game company seeks to claim and take ad revenue from let's plays EXCEPT Nintendo. Nintendo has always been very heavy handed in strictly controlling their IPs, even in heavily limiting merchandising in many cases, and going out of their way to sue what they deem to have the potential for piracy. Less people forget, Nintendo was am official supporter of SOPA (as most companies dealing with media were) before the public outcry against it.

Is it their legal right? Of course. But that doesn't make it a smart business decision. They have gotten nothing but negative PR for this. The general consensus on youtube is already that if you want to make money off of video game videos AVOID doing Nintendo games, and Nintendo has not only not tried to change this belief, they have in fact actively enforced it. All the youtubers without significant fame like the yogscast members who can have their voice heard and Nintendo would actually not completely ignore simply avoid Nintendo games altogether.



Emblem said:

You are aware this happens with all copyrighted material right? Not sure why Nintendo is singled out, this is Youtube policy to legally protect themselves and investors. Anything on Youtube that is not tagged or approved has just evaded notice. This is why so many videos are removed or have soundtracks missing.



unrandomsam said:

Silly they should be going after the used market. They have become very tight recently (Looking at the Wii range of Nintendo Selects compared to the Gamecube Players Choice titles anyway).



WiiLovePeace said:

Such a dumb move on Nintendo's part. But they seem to be listening to fans on some (not all) issues recently so I think they're taking steps in the right direction. Hopefully they reverse their revenue claims & the dumb affiliate program when they realise how little money they'll gain over the long run if they keep scaring off youtube video creators to focus on other brands instead of Nintendo's games.



0utburst said:

No it's not free advertising if you are getting paid.

Nintendo has the right to do so. Others are already doing it for a long time now just like @Emblem mentioned. Exercising that right isn't bad/evil just because others don't exercise their rights. It's getting out of hand (exponentially growing) and it's a smart decision by Nintendo to do it now rather than later when it will be too late.

Amazon Italy and France isn't listing Advance Warfare for Wii U. Hmmmmm



jjmesa16 said:

Smart move by Nintendo now but in the near future they will realize its stupid because nobody will be posting videos of Nintendo games. Keep the free advertising Nintendo!

But Nintendo I guess since you don't advertise your games/consoles, you just have other people do it and take their money. Sneaky sneaky. 😈



MikeLove said:


Do what though? Skim some pennies off a two minute video showing a MK8 race? What for?

It's not like posting a song or a movie on YouTube where you can make an actual case that the person is 'stealing' revenue from the copyright owner. The entertainment derived from video games is a result of actually playing them and owning it, not watching a clip of it on the Internet. If anything, these videos encourage people to go out and buy the game, and sometimes the console it is on.

Stupid penny pinching by Nintendo, and it will just be another excuse for people to bag on them.

Just when they seem to be building good will with consumers and fans, they try something stupid like this again. They never seem to get it...



Wouwter said:

@outburst "No it's not free advertising if you are getting paid."

It's free advertising in the sense that Nintendo doesn't have to pay for it.



Wolfgabe said:

People making a mountain out of a molehill as usual. Its Nintendo's game they can do whatever they please with it. You shouldn't trash them for doing something that is completely within their right. Who the hell lives off Youtube paychecks anyway?



marko said:

on videos like youtube don't you only get paid for videos with ads,
that luigi death stare video doesn't have ads right?
Nintendo should let their fans post videos since lets face it Nintendo marketing sucks!



Plasma_3 said:

From some of what I have heard, it is YouTube, not Nintendo doing the claims right now. I have heard that it is using some Algorithm that it uses to find copyrighted music or something along those lines.
If that is all true......



Josaku said:

This whole thing is . . . just getting rediculous . . . I mean, it's Nintendo's right to do this, and the affiliate programm could turn out really good, if the big N would provide affiliated content creators with the games they want to make a "Let's Play" of, after they signed in for it and got the part.
Nontheles, this whole situation is getting "hyped" and most people think it's a move by Nintendo, but they don't see that this is actually something to smile about, because Nintendo is opening up to youtube, before this they just wanted all the ad-revenue from videos which featured a Nintendo IP and now they want to share it, so why all this fuss about something getting better?



RickyWill said:

@Josaku Yeah, it's not like they're taking ALL of the money off the Ad Revenue or taking down the videos altogether.

They did spend millions developing a game, and Lets Players often get half of that just recording footage of said game, recording it, adding commentary, and uploading it to youtube.

(still more effort than porn but hey)



rbmoura85 said:

Lets not forget the you dont have to pay to use nintendos online they are already losing some money there



AlternateButtons said:

@BLPs I wasn't saying I was going to get revenue overnight, I was saying if I'm in this position, I will take the affiliate program. I'm not doing this for money anyway, I even said that I'll be doing Nintendo games regardless of copyright claims. But even so, I will make it and I will make a successful show out of this because I love doing it and I love entertaining people. Of course I don't expect it right away or even in 5 years, but I will gain my audience. Just you watch.



Neko_Ichigofan said:

I agree with let's play's, but Nintendo has even filed claims against media outlets such as my own who use footage from trailers during video podcasts to make things more entertaining. And the sad thing is that in my case I wasn't even making any money for my videos yet they were still getting claims filed against them...



Darknyht said:

I found that the soundtrack from Mario Kart 8 embedded into your video will cause it to get tagged as containing copyrighted material, and removing it solves the problem. The few videos I posted with the music quickly got changed into videos with ad-free generic music, and I now only upload videos with sound effects. If I want music, I can place ad-free generic music behind it.

I don't plan on getting rich on Youtube replays, but I don't like having even more dumb ads injected into videos for personal use.



RickyWill said:

For this, I... Honestly don't care.

Seriously, they're taking SOME money off Ad Revenue for Nintendo Properties, and not taking down the video altogether as say, Disney or Viacom would, knowing them.



Kaze_Memaryu said:

As I said before on another report about this: Let's Players don't really deserve that money, anyway. Complaining about getting less money for living out a hobby is just ridiculous.
Besides, Adblock solves that right away.



rjejr said:

I'm for Nintendo getting paid when people are making money off of their games - 10% or something - but if MK8 vids uploaded from w/in the game are going to come up anywhere near that discussion people will just stop using the feature, so that would be stupid on Nintneod's part. It's early for Nitneod getting involved w/ Youtubing vids from in game, so this wouldn't be a good way to start. They need to leave MK8 uploading out of it.



Ninhau said:

the couple of bucks nintendo will make with this wont compensate for the image theyre left with. this cashgrab is just too desperate



Melkac said:

@marko This is only affect the videos getting ad revenue. The Luigi Death Stare videos, hell, most fan videos don't have ad revenue, so they're not going to be affected at all.



Donutman said:

@Emblem sadly, this is probably the truth. But people are to dumb to see it that way . Just the big greedy "N" trying to take our money.



MikeLove said:


And the big greedy "N" is too dumb to see that everyone else will see it as them picking on Youtubers for nickels and dimes.



JaxonH said:

I don't care about this nonsense. It's Nintendo's content legally, end of discussion.



Gamecube5f said:

Nintendo should take ALL profits or revenue created off it's games. Just plain dumb that people even watch others playing video games anyway. That anyone would expect or think they deserve revenue created from videos of video games is just lame. More lame than the people that upload such videos and especially those that watch them. Why not actually get the game and play it.

It is basically like someone taking clips of music and selling it as their own giving no credit to the original artist. Of course that wouldn't fly, same deal here. Good job NIntendo for doing the obvious and anyone that is putting that many Nintendo videos online and expecting money for it is just a freaking loser and needs a life.



Itglows said:

I can't say I completely agree with Nintendo on this one but they are their games.



Donutman said:

@KennyPowers I can't say I don't agree. But if nobody dies nothing, then what. Second, big greedy n just made $20 off me buying mk8. I sold my disc of pikmin 3 for $45 the day I heard about that deal. I almost feel bad. And all the coins will get me a wiiware/vc download too.



mjc0961 said:

@outburst Nintendo has no right to take anything just because their game is in a video. If the video in question is a review or guide/tutorial, they have no right. Fair Use says such content is owned by the creator of the video, not the creator of the copyrighted thing that was reviewed or explained.

And we all know how crap YouTube's Content ID is: it will indiscriminately flag any content with Nintendo game footage in it without even caring about context. Hopefully Nintendo will do the right thing and immediately release any claims on footage they have no right to claim ad revenue on. And if not, I can't wait until Nintendo gets taken to court and gets their *** handed to them for copyright infringement.

Sadly, what will really happen is that Nintendo will deny the initial claim, and the uploader will make another claim saying "this is mine, sue me Nintendo", and then Nintendo will sit on the claim for 90 days taking all the ad revenue, then letting the claim be released due to them not responding to it. By this time, nobody will care about the video anymore and any views it gets will be peanuts to what it got right after upload when Nintendo was infringing on the copyright of the uploader and stealing their money. I would also love to see Google/YouTube get sued for their role in copyright infringement for allowing this to happen. It's nonsense and should not be allowed.

Also, I hope whatever money Nintendo gets from this BS is worth it. As @Ninhau said, what little money they make won't even come close to offsetting all the negative PR they're getting from this move, not to mention all the loss of free advertising from people who will now refuse to do Nintendo videos on YouTube in protest. The only people okay with this are blind Nintendo fanboys.



IceClimbers said:

To be fair, Nintendo's own videos have been taken down before by a "copyright claim by Nintendo of America". I'm not even joking.

The affiliate program is fair and makes sense. You get part of the revenue, we get part of the revenue, you give us publicity, we send you free review copies for reviewing/walkthroughs/blind Let's Plays. Seems like a win-win to me, assuming the revenue cuts are even, not some 10% you, 90% Nintendo bs.



mjc0961 said:

@Rukiafan What makes that even worse is that the footage from trailers you're using is footage that publishers such as Nintendo purposely give to media outlets so those media outlets can share them with their viewers for advertising purposes.

So you have Nintendo saying "Here, take this video, please upload it and share it so as many people as possible see it", then immediately turning around and saying "WHAT?! How dare you take this video and upload it and share it so as many people as possible see it?! COPYRIGHT CLAIM/CONTENT ID MATCH!!!"

If they don't want people uploading trailers, don't hand them out to be uploaded!



dereq said:

Nintendo is sitting on over 4 BILLION in cash reserves. Explain to me again how DESPERATE they are for money.



mjc0961 said:

@IceClimbers No. Nintendo taking any cut of reviews or walkthroughs is unacceptable. Copyright law is very clear on this; such content is owned by the person who created the review or walkthrough and the creator of what is being reviewed or whatever has no claim to that review or walkthrough. If Nintendo takes money from those videos, they are breaking the law and should be punished.

Look up fair use sometime.



Zombie_Barioth said:

Thats not the same thing, for something like music listening is the experience. For a game the experience is in the interaction, something you can't do through a video alone. Even with story-based games the interaction is the driving force behind it.

As for lets plays, if your talking straight up, vanilla gameplay, yea, you have a point. For the really good lets plays the point is what the creators put into them. While people aren't entitled to making money they certainly don't deserve this.

Plenty of people DO in fact buy games they've watched gameplay of, and a lot of that does comes from lets plays as well as reviews, commentary, or just talking over footage. It creates word of mouth, it creates awareness for games people would otherwise not buy, much less play, so your "why not actually get the game and play it" argument doesn't work here. Its a chicken-egg scenario.

Its bad PR to do what they're doing, especially for such little gain. They'll get peanuts, lots and lots of peanuts, but in exchange for the goodwill of their fans. Thats a bad trade. At the very least this affiliate program comes off as Nintendo saying they've had a change of heart and decided not to screw fans over quite so much. They could, but they're not going to.



eaglebob345 said:

Why are people even allowed to make money off of videos containing ANY footage of ANY company that did not give permission to do so? An affiliate program is a great idea for those who don't want to be breaking a law. Also, wouldn't the fair use act only help IF they were not using copyrighted material?



Iggly said:

At first glance it seems like an easy way to make profit.

In the long run, that pocket change is going to disappear since Youtubers(Especially the big ones like Pewdiepie) would not want to lose all of the profit they gain from their videos.

So hopefully they get this whole program functional and gives a fair share to Youtubers since Nintendo is pretty much throwing away free advertising by having the copyright claim in effect. Though Youtube is partially to blame as well since the ID Claim system is very broken.



IceClimbers said:

@mjc0961 Fair use goes out the window if you create the video as part of this affiliate program, which is just another term for an official Nintendo Youtube network. It especially goes out the window if the review/walkthrough/blind Lets Play is done using a free review copy sent by Nintendo specifically so you can make the video as part of the network. Nintendo would have the legal right in this case.

In any case, I'd be more worried about Google trying to take an unfair cut of the ad revenue than Nintendo. They'd be the one to take advantage of this against both Youtubers and Nintendo. As in, expect a 5% you, 5% Nintendo, 90% Google type of bs for ad revenue, as its on Youtube so Google has more say on it than Nintendo does.



Gashole said:

@dereq @Melkac
For the third year in a row, Nintendo has had nothing losses. In 2011, it was $458 million. In 2012, it was $366 million. And last year, it was $229 million. It's not over. Even with Mario Kart 8, it only managed to sell approximately 1.2 million copies in it's first four days. I say ONLY, because they're in serious need of moving many more Wii U console sales past its initial 6 million mark. The timing of Smash Bros. at Christmas is vital for the Wii U this year, and next. Although they have 'enough monetary reserves to run a deficit for 38 years', this still begs unnerving questions:
Why is Nintendo out of touch with its gamers?
Why does Nintendo fail to utilize their trademark creativity and innovation for their games, and new technologies?
This comes from a generation of Nintendo gamers (since the '80's) that have grown up, even if just a little, but are now a little smarter, too. Many of us are now married, with children, and we would love to show the next generation what Nintendo is still capable of doing. The problem is, it's getting harder to do so, with fewer relevant and exciting options than even the Wii or DS had. And those systems sold 101 million, and 154 million, respectively. The Wii U and 3DS have sold 6 million and 43 million, respectively, even if "so far".
I'm not going all-out, like many others, with a doom-and-gloom scenario. But we, as gamers, are the reason why Nintendo is still around. And if we continue to speak frankly and honestly, and Nintendo continues to fail to listen, then there is a slow, yet gradual, decline in interest, and profits. Younger gamers would like to see a more flexible and adaptable technology that catches up with the competition, like with cell phones.
Having said all of that, my initial post was as much about playful sarcasm, as it was about reserved cynicism. Take it however you will.
But "the bottom line" really isn't about money, anymore. It's about the gamers. And we're speaking out, louder than ever.



Gameday said:

Now i can possibly unmute my music ! I dont get claims when i do so i add different music and do Commentary though.



IceClimbers said:

@Gashole The first year of losses was due to selling the 3DS at a loss. The second year was due to poor Wii U sales + selling it at a loss + buying out their own stock. The 3rd year was due to selling Wii U at a loss + some mystery tech acquisition of over $100 million. Wii U is no longer being sold at a loss.

Young gamers don't care about Nintendo anymore, as they want CoD to make them look "mature". Even if they did want Nintendo, their parents will just buy them some cheap tablet instead. Their attention spans are too short to care anyway. This is hurting the 3DS as well.



Zombie_Barioth said:

@mjc0961 wasn't talking about doing it under the affiliate program though. Using the affiliate program to strong arm people into complying (via ID claims and such) would just make matters worse for Nintendo.

Google doesn't really have any leverage to take advantage of, if Nintendo doesn't like something they can just take their ball and go home, it may be Google's site but its Nintendo's IP. They want Nintendo as a customer just as much as Nintendo wants all this BS of theirs to go through. Google is smart enough to know that Nintendo's presence just brings in more traffic (i.e. money).



3MonthBeef said:

There's always the potential side benefit to the content creators to receive special goodies from Nintendo for making Let's Play videos and sharing the profit. They might get special invites, tech, collaborative media exposure, etc.



AyeHaley said:

Nintendo can be pretty backwards sometimes. They should be glad people are posting the Luigi stare everywhere. Free friggin marketing.



Starwolf_UK said:

Don't care if already said. It is the background music that causes the claim. MKTV lets you turn that off. You can also remove the music too via the content ID matches.

Thing about the BGM. Nintendo could not be more lazy with how they do it. The names of the music look like they just took the files in the games music directory, converted them to WAV (or whatever googles requirements are) and just sent them over to google.

Sad thing is that will probably make more money than actually releasing the OSTs would (releasing the OSTs is more effort too, you actually need to name the music tracks).



datamonkey said:

Nintendo are acting like blood suckers here.

If I produced and sold products, I would be over the moon for people to promote them for free on YT.



Gashole said:

Although the core console is no longer sold at a loss, do Nintendo gamers in general care? Not entirely.
And when young gamers aren't helping, as you implied, it just makes the situation a little more unsettling.



Action51 said:

Here's the thing:

Nintendo is being extremely forward thinking here, but the kids who grew up in the post internet age don't understand this, and you don't understand that because there are no controls in place we get legislation like the DMCA, and the truly horrendous SOPA and PIPA which will either be passed piecemeal or in full if the wrong people get their way.

This affiliate program seeks to insulate Nintendo and content creators by pro-actively creating an infrastructure now that works to maintain some level of control over their intellectual properties, while still allowing ordinary and popular broadcasters to profit.

This is a new thing, and the details aren't completely worked out, but this could end up being a good thing for content creators. The problem is our knee jerk, uninformed reactions and desire to shoot our mouths and keyboards off at the slightest whiff of an opportunity to bash something that sounds bad or that we've been conditioned to think is bad...and certainly the desire to bash Nintendo just 'cause.

Most of the arguments boil down to the "free advertising" thing or some screaming about your right to broadcast whatever you want because you think that you have a right to other people's intellectual property because the internet and Youtube makes it super easy to do so.

First, let's take a deep breath and see what the details of this program are before we scream about Nintendo violating your "right" to profit off their intellectual property without any framework or approval process.

PS: If the final details do suck, and this does turn out to be a bad deal for content uploaders, then I'll be the first to admit it and call Nintendo out on it. As someone who has created digital art and commercial video product, I can understand Nintendo's position here.



Elliander said:

@eaglebob345 If Nintendo advertises a feature to upload 15, 30, and 45 second videos directly from a game that they sell to Youtube and then I pay for that game to use that feature this constitutes a license to use the software to upload the videos - not fair use.



Elliander said:

I can confirm that Nintendo is sending DMCA take down notices over Mario Kart 8 videos:

I filed a counter notification already so Nintendo has 10 days to sue me or it goes back online. Then I have to repeat the process with every single video. I have already contacted lawyers about filing a lawsuit of my own though. Even though there is now a mandatory arbitration agreement, the moment Nintendo used DMCA - by the conditions of it's own EULA - they can now sue me and I them.

Here are the facts:

1.) Nintendo advertised the ability to create and upload to youtube clips of 15, 30, and 45 seconds. It also advertises the ability to embed these clips within posts on the console itself.

2.) Only people who purchase Mario Kart 8 may use this upload feature. This means that when you purchase a copy of Mario Kart 8 you are not only purchasing a license to the game, but a license to all features of the game. This in turn means that I paid Nintendo for a license to create and upload videos to youtube.

3.) I have never monetized any Mario Kart 8 video and I have no interest in their affiliate program. If I were to use their affiliate program it would give Nintendo all advertising revenue for all videos that I create that is Monetized. Due to the fact that I manage videos for a company who had me process VHS into digital and upload to Youtube back when Youtube was young I do not have a contractual right to give Nintendo the ad revenue of these videos nor do I have any incentive to do so anyway.

4.) When Nintendo sends a take down notice it is threatening to have the entire account deleted. This constitutes potential damages.

5.) Even though the video in question is only 30 seconds long and only had 20 views it is on principle that I fight back. I paid Nintendo to use it's product and I will have what I paid for. To this end I contacted Nintendo over the phone and spoke with people for over an hour who took down my legal information and forwarded it to the legal department before it escalated this far and they have refused to work with me.

6.) In order for Nintendo to win any case against me it would have to argue in Federal court exactly how it is copyright infringement to use it's software exactly as intended. If, for example, it originally intended to leave audio out it could have designed it to do so. If it wanted to embed adverts in the video itself it could have done so just as Electronic Arts did with it's Spore video creation. It would also have to justify continued distribution of such software during such a lawsuit and show how my use of it's software is damaging in any way.

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