Let’s play fair: to what extent are the contributions added within a ‘Let’s Play’ video sufficient to overcome the requirements for transformative use within the fair use doctrine?

The rise of the video game industry has introduced new forms of entertainment, including ‘Let’s Play’ videos - recorded playthroughs of video games that vary in style, audience, and added contributions. However, their extensive use of a game’s audiovisual elements has sparked debate over fair use eligibility under U.S. copyright law, often leading to their dismissal as mere reproductions. Expanding on existing discussions, this essay challenges such dismissals by demonstrating that all categories of ‘Let’s Play’ videos, despite a sliding scale of difficulty in meeting the transformative use requirement, have the potential to satisfy the first factor of the fair use test. Through an analysis of player agency and the unique nature of gameplay, this paper argues that even playthroughs without commentary could qualify as fair use by fundamentally transforming the original work’s purpose and character through the removal of interactivity. Ultimately, if even the most ‘problematic’ form of ‘Let’s Play’ video could potentially warrant fair use protection, this article questions whether a doctrine designed for traditional media is truly equipped to address the complexities of modern interactive entertainment.