Tom Lingard and Aidan Grant from legal firm Stevens & Bolton advise devs on how to best target video-makers
The endorsement of a famous vlogger can be the difference between a game’s success and failure. But should developers look to influence these types of (informal) promotion for fear of losing control of their brand?
Advertising guidelines introduced to promote greater transparency in the vlogging community mean obtaining endorsements is a much more delicate art thank one might think.
Protecting your intellectual property
Taken as a whole, video games are full of a developer’s intellectual property (IP): from titles and logos (trademarks) to cutscenes and dialogue (copyright). Before a game’s launch, the only access the public has to a game’s IP is through information which the publisher chooses to release. Any pre-launch promotion with websites, vloggers or more traditional media will usually come accompanied with the usual arsenal of non-disclosure agreements and licence agreements, carefully outlining what can be announced and – often more importantly – what can’t. This gives developers a strong degree of control over their IP.
However, post-launch, developers have much less practical control over the use of their IP. Although the end-user licence agreement (EULA) for most games will contain restrictions over the user’s ability to use footage or any other IP for their own purposes, a simple browse through YouTube will quickly demonstrate how little control developers have over their own IP.
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Setting aside arguments about whether vloggers do in fact infringe these IP rights in their vlogs, should developers care? The potential gain which can come from a respected or popular vlogger’s endorsement can be lucrative: Flappy Bird developer Dong Nguyen confided in early 2014 that he was earning upwards of $50,000 in advertising revenue from the game, a figure which inarguably is much higher thanks to the unofficial promotion of the game by superstar vlogger Pewdiepie.
If a popular vlogger provides a sneak preview or drives more people to buy the game, then the developer should ask himself whether the technical infringement of his IP rights is a price worth paying for the free advertising his game receives.
In addition, doing the reverse and attempting to control what vloggers and websites say about your game can have a disastrous PR effect. One only has to look to the uproar over EA’s Ronku agreements with vloggers, or Microsoft’s deal with Machinima to promote the launch of the Xbox One to see how the public perceives the lack of honesty between developers and the media in such relationships.
Is there a middle ground?
Perhaps a way forward for developers is to accept that their IP will be used, and to actively permit limited use through, for example, the game’s EULA.
Mojang’s EULA for Minecraft, one of the most popular games in the vlogging community, states that “within reason, you’re free to do whatever you want with screenshots and videos of the Game”, so long as the user doesn’t make commercial use of the content or do things which are unfair or affect Mojang’s rights.
Vloggers are, however, specifically permitted to place adverts before their videos, and so in a sense commercialise their videos to a degree. This approach to the potential infringement of Mojang’s IP rights allows the Minecraft community to flourish and keeps the fanbase onside, all the while allowing Mojang to retain ultimate control over its own IP.
Developers should ask themselves whether the technical infringement of their IP rights is a price worth paying for the free advertising his game receives.
Creating an advertorial
However, it may be that a developer wants to create a more tightly-controlled marketing campaign for the launch of a new game and is looking utilise the vlogging community as a direct channel for connecting with fans. In these circumstances, developers should be aware of advertising guidelines which dictate when vloggers will have to disclose that companies have paid for content.
In 2014, the Advertising Standards Authority (ASA) identified five YouTube videos produced by popular vloggers, each centred around Oreo biscuits, which fell foul of advertising guidelines by failing to disclose that each vlogger had entered into a commercial relationship with Mondelez, the owner of the Oreo brand, to promote the product. As a result of the investigation, in 2015 the Committee of Advertising Practice issued new guidance on advertising in video blogs.
Where a vlogger is paid in money or in kind – for example, with a free copy of the game – and in turn the developer has control of the content of the vlog, this video is classed as an 'advertorial'. A vlogger must disclose upfront that the particular video is an advertorial, and must do so at the beginning of the video – ideally embedded into the video itself – and not simply referenced in an information box below the video.
The disclaimer needs to be particularly prominent where the style and editorial content of the vlog is in-keeping with the vlogger’s other videos. The guidance also suggest suitable wording; the phrase “thanks to X for making this video happen” has been deemed to be an insufficient disclaimer as the message does not do enough to distinguish the advertorial from mere sponsorship. Instead a vlogger should use words such as “advertisement feature” or “advertorial”.
Conversely, where a developer provides free products to a vlogger on the condition that the games are reviewed independently of any brand input, this will not be classified as an advertorial. However in order to ensure compliance with the above consumer regulations, vloggers would be advised to disclose the incentive to review the product.
What these new rules show is that developers need to consider their brand reputation and marketing streams carefully. Can they risk the gamble of viral marketing and the potential windfall offered by popular endorsements? If not, do they want to be seen to be paying vloggers for promotion or will this be seen as an acceptance that the game could not stand on its own merits?
What is certain is that, whichever path a company chooses, the influence of the vlogging community – certainly for the foreseeable future – cannot be ignored.
Tom Lingard is a partner and Aidan Grant is a trainee solicitor at Stevens & Bolton.