Nintendo's New Deal With YouTubers Is A Jungle Of Red Tape

There’s no better game maker around than Nintendo, but the company is struggling to keep up with the changing face of the video game landscape in other ways. Namely, in deciding how footage of their games is used and distributed online by fans and content creators.

Nintendo upset YouTubers last year when videos featuring their games started being flagged by YouTube’s Content ID system on copyright grounds. Nintendo’s solution was to allow many of the videos to remain up, but they would take 100% of the monetization profits from those videos. Needless to say, YouTubers were not amused.

Now, to Nintendo’s credit, they've devised a new system that they view as a compromise with the YouTube Let’s Play generation. They call it the “Nintendo Creators Program," and they've just finished outlining the details in a recent post.

The good news? Nintendo is no longer taking all the money for themselves. The bad news? Everything else, including the hurdles YouTubers have to jump through to monetize Nintendo videos and the list of titles eligible for the program. In short, it’s has more red tape, asterisks and exceptions than any other deal in the industry right now.

Nintendo will allow YouTubers to keep 70% of the revenue for channels registered through the program, but only 60% for individual videos. This is the first hiccup in the wording of the deal, as it’s confusing what Nintendo means when they say:

“When you register a channel, you will be eligible to receive a share of advertising revenue from Nintendo for all videos included in that channel, regardless of their content. If you only want some videos to apply to this program, please register each video individually.”

The implication here is that if you register your entire channel as a whole with Nintendo, they’ll keep 30% of all your revenue, even on non-Nintendo videos. If not, you’ll have to submit each video individually through the program and receive a smaller cut. Nintendo seems to be operating under the strange assumption that YouTubers are going to have entire channels devoted to only Nintendo videos, hence the channel-wide deal. Either the wording here is misleading and confusing, or Nintendo badly misunderstands the YouTube scene. Obviously most YouTubers are going to be mixing in Nintendo videos with games from other companies, and I can’t imagine more than a handful would turn their entire channel over to Nintendo with this program, or start an entirely new one just for Nintendo products.

But this isn't even the most pressing issue with this deal. Rather, when you look at the list of games Nintendo has greenlit for this program across all their systems, past and present, it looks long, but studying it more closely and you begin to see all the major titles that have been left out.

For Wii U alone, games like Bayonetta 2, Hyrule Warriors, Captain Toad’s Treasure Tracker and Super Smash Bros. are missing. The biggest game you can use is probably Mario Kart 8, and there are only ten titles on the approved Wii U list in total. In fact, across all console generations, there isn’t a single Super Smash Bros. installment that can be used, and other classics like Star Fox 64, The Legend of Zelda: Ocarina of Time and every Pokemon game are missing as well. Presumably Nintendo developed some of these games with other parties, and either wasn't able to/didn't care to secure the licensing rights for them. But it’s a huge chunk of classic Nintendo games, past and present, that are left off this list, and combined with these other restrictions, and this entire programs seems like it’s going to be more trouble than its worth for more YouTubers. Compounding all this further is the fact that it can take Nintendo up to three business days to approve new videos, and two months to actually pay out the money YouTubers have earned from them.

Reaction to the Nintendo Creators program has split fans and press, some of whom thinks Nintendo is very much in the right to do whatever they please with footage of their games, and taking only a 30-40% cut down from 100% is a step in the right direction. I agree with the legal perspective that Nintendo has full rights to allow or disallow what they choose, and that YouTubers misunderstand terms like “fair use” all the time.

With that said, Nintendo seems stuck in the past when it comes to loosening the reins on fans spreading their love for Nintendo games, a marketing tactic which has done wonders for the entire industry as the YouTube/Twitch gaming scene has exploded in recent years. Yes, technically YouTubers are making money off their work, but it makes Nintendo look painfully unhip to be this restrictive with a supposedly “progressive” new program that’s still miles behind what most other companies have arranged. Contrasting this to Microsoft ’s recently announced video policies that barely have any restrictions at all, and Nintendo seems downright clueless. This is also a company that was dismantling fan-made Super Smash Bros. tournaments as recently as last year, when these video rights issues were surfacing in a different way.

While it’s certainly true that Nintendo creating some sort of program is better than a blanket ban on all Nintendo content online, or tax collecting 100% of the revenue from such videos, this is still miles away from where it needs to be if Nintendo actually wants this to be viable in the current YouTube landscape. There are too many delays, too many unclear terms and too few games available for it to be the step forward Nintendo needs to make into the future.

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