The Right of Publicity and Video Games

Every once in while a story might pop up in the news that has you scratching your head. College football players suing EA for using their likeness in their NCAA video games. Manuel Noriega, the military dictator of Panama from 1983 to 1989, suing Activision for his inclusion in Call of Duty: Black Ops II. Under what legal theory are these individuals able to bring suit (with varying degrees of success) against these gaming companies? The answer is the right of publicity.

The right of publicity is defined as, “the commercial value of a person’s identity by using without consent the person’s name likeness, or other indicia of identity for purposes of trade.” This right prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of a person’s persona. This means that it gives an individual an exclusive right to license the use of their identity for commercial promotion. An example of this would be slapping a picture of Beyoncé on a t-shirt and then selling it. The only reason people are purchasing your t-shirt is because her image is included on it. You are directly piggy backing off of her fame to turn a profit. The law recognizes that she has a right to prevent you from doing this and recoup the financial gain you reaped.

You might be thinking to yourself, “It’s a free country with free speech. The first amendment allows me to do this.” The answer to that is, “It depends.” Way back in 1977 the Supreme Court tackled this question in Zacchini v. Scripps Howard Broadcasting Co. Zacchini was a human cannonball and felt he had been wronged by Scripps Howard broadcasting his performance on television. In those days, you hyped the hell out of your act and then sold tickets to the event. If someone played it over the air the likelihood of people seeing it in person went down. This means Mr. Zacchini isn’t making the same money he was before. We love watching people shoot themselves out of cannons and by broadcasting these acts without compensation we will discourage these types of performances. The Court agreed and merely held, “[w]herever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent.”

Whenever the Supreme Court does something like this it means the lower courts have to do the dirty work of fashioning some sort of test. In this case, how to balance the First Amendment protections against this new right of publicity protection.  So now we have: (1) the Restatement approach; (2) the transformative use test; (3) the predominant use test; and loosely (4) the Rogers test.  Thanks, Supreme Court. For the law nerds, I’ll provide a brief overview of what exactly the transformative use test is. Otherwise, skip on down to “The Right of Publicity Clashes with Video Games”

The Transformative Use Test

The California Supreme Court formulated the transformative use defense in Comedy III Productions, Inc. v. Gary Saderup, Inc. The defense is, “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” Further broken down, the five considerations courts must consider are whether: (1) the celebrity likeness is one of the raw materials from which an original work is synthesized; (2) the work is primarily the defendant’s own expression if the expression is something other than the likeness of the celebrity; (3) the literal and imitative or creative elements predominate in the work; (4) the marketability and economic value of the challenged work derives primarily from the fame of the celebrity depicted; and (5) an artist’s skill and talent has been manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit the celebrity’s fame.

The question when using the transformative use test is not whether a particular work loses its First Amendment protection. Instead the question is “whether the interests protected by the right of publicity are sufficient to surmount the already-existing First Amendment protections.” Thus the question becomes “has an individual’s identity been sufficiently transformed?” Identity encompasses “not only [an individual’s] likeness, but also his biographical information”.

In order to accomplish this goal in video games, the Third Circuit utilized the transformative use test only upon the specific avatar at issue rather than the entire creative work. To do so otherwise would mean that “[a]cts of blatant misappropriation would count for nothing so long as the larger work, on balance, contained highly creative elements in great abundance.” Further, the Third Circuit also clarified that in the video game context the mere ability to alter an avatar’s appearance would not serve as a shield to right of publicity claims. To do so otherwise would mean even blatant instances of misappropriation could duck liability by letting the user alter the avatar in some fashion.

The Right of Publicity Clashes with Video Games

At the time Zacchini was decided video games were just starting to boom. Today, video games employ over 120,000 people and rival the size of the motion picture industry in terms of overall revenue. Video games got their start in 1972 thanks to a small bar named Andy Capp’s Tavern in Sunnyvale, California. A new company called Atari, Inc. chose to debut their first game, Pong, at the bar largely due to their good relationship with the bar’s manager Bill Gattis.

Pong would later become the first arcade game to reach widespread success and allow Atari to dominate the gaming scene through the 70’s and 80’s. Since then, video games have become a past time for most Americans and have progressed far beyond the iconic black and white game board of Pong. Now games feature stunningly realistic representations of real world locations and people. Much like you could print Beyoncé’s face on a t-shirt so could you also recreate her digitally in a video game. That’s a problem for Beyoncé.

The courts have decided that video games qualify for First Amendment protection but when you throw Beyoncé in your game then you’re going to need one of those balancing tests listed earlier. The First Amendment is inherently limited by the right of publicity. But rather than spend a bunch of time talking about how it does this in theory, let’s dive into the cases mentioned earlier.

In re NCAA Student-Athlete Name & Likeness Licensing Litigation

In re NCAA Student-Athlete Name & Likeness Licensing Litigation, decided in July of 2013, involved the Ninth Circuit balancing the right of publicity of a former college football player against the First Amendment right of a videogame developer.  EA produced the NCAA Football series of videogames. It allows players to control various avatars representing college football players.  EA subsequently attempted to replicate the players and each schools’ team through jersey numbers, height, weight, build, skin tone, hair color, and home state.  Moreover, EA would send questionnaires to team equipment managers and study highlight reels in order to match unique play behavior.  The NCAA forbids the use of actual player names. So… EA just goes ahead and omits the players’ names on their jerseys while assigning each player a home town that is different from the actual players’.

Keller, a starting quarterback for Arizona State, objected to the use of his likeness and filed a putative class-action alleging EA violated his right of publicity.  Keller argued that his physical characteristics have been replicated and realistically portrayed.  Moreover, the substance of the game is the same as users control Keller’s avatar playing football in various stadiums. Relying upon the transformative test, the court found this reasoning persuasive and concluded that “EA’s use of Keller’s likeness does not contain significant transformative elements such as that EA is entitled to the [First Amendment] defense as a matter of law.”  On July 16, 2015 final approval was granted for a $60 million settlement between the NCAA, Electronic Arts, and the student athletes who brought the right of publicity claim.  This won’t be the last lawsuit of its kind and other similar claims are filtering up through the courts.

Manuel Noriega v. Activision/Blizzard, Inc.

Following this case Panamanian dictator Manuel Noriega brought a claim against Activision and Blizzard for his use and portrayal in “Call of Duty: Black Ops II”.  At specific issue was “Suffer With Me” the seventh mission in the campaign where the player is tasked with capturing Noriega and destroying his reputation.  During the mission players encounter Noriega’s “life-like computer-generated character [that is] the villain the player… must annihilate and humiliate.”

Noriega contends that he has been portrayed as nothing more than what he is, in the setting in which he gained his notoriety.  Noriega argues that much like No Doubt and Keller, he is referred to by, “the same name, is called by the same monikers (i.e., “Pineapple Face”), has the same build, the same facial features, and the same outfits and is in the same setting as he was when he became well-known.”  Noriega concludes that when a defendant, “uses an exact depiction of a band, a college football player, or a General in its videogame, it has violated that person’s right of publicity.”

The court was unimpressed and dismissed Noriega’s complaint with prejudice.  The court found two factors dispositive in determining that the use of Noriega’s likeness was transformative.  First, defendant’s use of publicly available photographs to create Noriega’s avatar was a small part of extensive “raw materials” used to make the game.  The court doesn’t elaborate on this point but concludes it is transformative. Second, his depiction was not the “very sum and substance” of the work and was de minimis compared to the whole.  Finally, the court concluded saying that the “marketability and economic value of the challenged work in this case comes not from Noriega, but from the creativity, skill and reputation of defendants.”  This case is very similar to In re NCAA but is victim to having a detestable plaintiff that the court is unwilling to reward. EA also crafted its games using extensive “raw materials” from surveys and publicly available data. Each individual college football player did not constitute the “very sum and substance” of the work and yet an opposite conclusion was reached. Similar facts, opposite conclusion.

Conclusion

The legal waters surrounding this right of publicity are murky and change depending on where you go. California happens to be a large nexus where these cases get decided. It’s no wonder when this is the home of Hollywood and several large and influential gaming companies. These cases can and do have a large impact on the industry. EA has just decided to abandon the NCAA series of video games rather than come to the table and work out an agreeable licensing deal for college athletes. Cases of these kind won’t be going away any time soon.

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Cooking with GOG and First Subscriber

Skyrim Part 4

The Skyrim series reached an abrupt conclusion almost immediately after discovering and killing the first dragon. I attempted to show off my shout powers in a manner that didn’t hit anyone but they still were not amused and cut me down after a brief segment of me running and hopping away. I begged for my life and attempted to yield and just pay the bloody fine but it was all for naught. I think I’ll roll a new character and get to where I was before continuing the series. Until then the short 10 minute video is a monument to my prowess in video games.

Pre-Alpha DUSK

I watched Two Best Friends play the pre-alpha of Dusk (DUSK?) and I really wanted to give it a shot. It’s like Doom, Quake, and Duke Nukem had a threesome and popped this game out. Controls look smooth and the graphics look like garbage. Perfect. So I started chatting with their twitter handle and made a pretty solid case for them letting me do it.

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I got punted over to the head honcho himself and made my case but was ignored.

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So I did the only thing that I could do and made a cooking video. I sent him a link to show him what he drove me to.

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He liked it. Asshole.

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Game Over Gaming Cooking

So since DUSK was off the table I had to do something else. My buddy Austin got some directions on how to make a lemon garlic tilapia dish. He proceeded to burn/ruin the dish. Now I am an atrocious chef but I can at least make that. So after some nice whiskey I decided to make a cooking video for him to follow. I hate myself for doing it in portrait but my judgement was less than great at the time. It consisted of me attempting to cook fish one handed. It went about as well as you’d expect. I lost track of what step I was on and made sure that at least half the steps consisted of drinking more whiskey. So why not. I threw it on Reddit.

It is now my most viewed video. In a gaming channel. With zero editing and preparation. Awesome. As a result, I earned my first subscriber. I told him I would make sure he was immortalized here. So say hello to Mr. Smith.

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I quickly got some more subscribers after that. I’m pretty pumped about it and now also feel like I’m locked into drunkenly cooking and making videos of it. It wouldn’t be such a bad thing if not for the fact that it would probably drive Erica, the girlfriend, insane. I’m using knives on nonstick pans, spilling butter all over the stove, and creating a stack of dishes a mile high. It can only be healthy for the relationship. The path to stardom is fraught with the corpses of relationships… I must press on.

Killing Floor 2 Guide

It’s Halloween. I have shit kids knocking on my door and no candy to give them. I figure I’ll hole up in my room and play something at least semi in the spirit of Halloween. I picked Killing Floor 2. It’s an FPS where you have to survive 10 waves of “zeds”. They’re basically zombies but genetically engineered by a psychopath. You fight the psychopath at the end. It’s laced with heavy metal and gore so it’s great for therapy.

There are a variety of classes to choose from and you’re bound to find one that strikes your fancy. Mine is either support or firebug. Support runs around with a stupid amount of health and a shotgun. You can just about murder everything and get slow motion mode triggered constantly. Shotguns in slow motion is a thing to behold especially when the graphics are extremely well done.

Firebug is pretty self explanatory. You run around madly with a flamethrower and gently sprinkle everything in sight with napalm. So I figure I’ve put a bunch of hours into him and can be considered an expert. This means I have to write a guide to playing the firebug and run him through 10 waves with some commentary. Turns out I got a solid 7 rounds and only ever had one faithful teammate. Solid LP. Hopefully the guide I’ve written makes up for its deficiency. Might do a spread on each class. We’ll see what the response is like after I hit up the KF2 subreddit.

Happy Halloween.

Killing Floor 2 – Firebug Guide

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The Firebug. It’s a class with razzle dazzle. Pizazz. Play your cards right and you’ll be topping the charts with kills. You’ll also likely annoy the hell out of everyone around you but you don’t care because fire and brimstone is your bread and butter. Only the demolition class is going to rain on your day and disintegrate the enemies you wanted to watch slowly burn. The only drawback is the complete inability to deal with anything above a Husk. Despite this, the Firebug is a blast to play.

Your Role

You serve the essential role of keeping the team from being overwhelmed. You excel at clearing out everything below a husk. You can lock down a chokepoint to the point where only the big baddies are going to get through.

Perks

Level 5

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Bring the Heat is your baby if you’re starting off. It increases fire damage by 35%. The other perk at this level is High Capacity Fuel Tank. It doubles the fuel and mag capacity of all your weapons. When you get to rank 15 and pick up Napalm then you should go with High Capacity Fuel Tank.

Level 10

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Napalm is currently broken and can instantly clear waves with a single puff thanks to it’s massive AOE damage. Until it’s fixed, skip Barbecue and go with Ground Fire. It will massively buff the damage on your Molotov and the slow will help your team line up those head shots. Plus, if you’re playing the Firebug properly, you’ll be lighting the ground on fire most of the time anyway.

Level 15

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Napalm lets your fire jump from foe to foe like some malevolent virus. It also gives a 150% increased burn time. The other perk is that it’s broken as hell and can do a stupid amount of damage. Zed Shrapnel gives a 20% chance to explode that will damage and knock down nearby zeds. I like consistency and not praying to RNGesus so that’s why I usually give a pass on this perk. Plus Napalm is brokenly good right now.

Level 20

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Heatwave. No questions. Not even going to discuss the other option. This means even your craptastic (OP currently thanks to Napalm) caulk and burn can shove enemies out of the way. You’re already hard to get swarmed because you can just spray fire all over yourself and walk out unscathed. Now you can just run in a straight line and shove everything out of the way if you get in a bad spot. It’s your own personal get out of jail free card. Use it.

Now those of you possessing a single working eye will have noticed I’ve photoshopped rank 20 and 25 to look as if I’ve achieved this level. You’re wrong. I used paint. Spend the hundreds of hours achieving these ranks and then tell me I’m wrong. I’ll revise the guide and even put in a snarky shout out with your name on it. Someone has done so. Shout out at the bottom.

Level 25

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Inferno is your pick at level 25. The extra burn damage is nice but it’s the  30% slow you’re after. Combined with Ground Fire it will be a huge boon to your team. Slower Zeds means they’ll have an easier time lining up those crucial head shots. Pyromaniac sounds great on paper but the fire damage still ticks as normal so your only benefit is getting the impact damage from your spray. That’s a small amount of damage. You’ll feel awesome while doing it but Inferno has greater team utility and that’s god at higher difficulty levels.

Weapons

Caulk n’ Burn – Starter weapon. Short range. Not a lot of ammo. Still lights things on fire and thanks to the Napalm bug it can stay with you for the entire game if you like. Also still benefits from the Heat Wave talent and pushes enemies out of the way.

Trench Gun – Personally, I like the Trench Gun. It combines what I like about the Support class with the Firebug. Realistically, the Trench Gun doesn’t benefit from your perks, it has a small ammo pool, and deals subpar damage. That being said, it does have it’s niche uses. You can kill a siren in a single blast. Kill a husk with 2 headshots or a single fueltank hit. It will also probably serve you better in a last stand scenario against any of the big baddies. Otherwise, just skip it.

Flamethrower – Better in every way than the Caulk n’ Burn. Not necessary as long as Napalm is broken but you’ll notice a difference.

Microwave Gun – High ammo use and a huge weight in your inventory means this is a skip until the boss. Even then, it’s only really useful against the Patriarch. Hans is getting a Flamethrower to the face.

How to Play

Aim at the feet! You’ll be leaving a pool of fire on the ground for things to walk through. You’re not getting extra points for scoring a headshot with your flamethrower. Your movement is going to be like that of the tides. Run forward and spread some fire on the legs of the zeds and then back peddle. The zeds won’t die immediately so you have to stay nimble. Once they turn to ash, run forward and repeat the process.

Now eventually you’ll have to reload. Usually you aren’t lucky with getting a lull in the combat. This means you need to back up and then just recover the lost ground. If there is a bunch of enemies and you notice your gas is getting low, toss a Molotov. It’ll deal a ton of damage and buy you the crucial time you need to reload and keep the fire coming.

Spray your napalm in short and controlled bursts. The damage is from the zeds being on fire. Not from getting hit in the face with napalm (negligible impact damage). So you only need a small burst to light them up. This will also help you conserve your ammunition.

Early Game

The early game is a cake walk for you. Run around and light those early clots up for some much needed dosh. Remember you start with a couple Molotovs. If you see a big group, toss one in and get all that sweet sweet money before your teammates can pop their heads. As soon as you can afford it, pick up the Medic Pistol. Easy experience for your medic class and your teammates will thank you. Hang onto it for the entire game.

Normal/Hard – Skip the armor until wave 5. You’re not likely to die if you play smart and you’ll have teammates (and your Q) to heal you. You’ll be taking damage but it’s not likely to be the fatal kind so you’ll just be burning money on armor that was unnecessary.

Suicidal – You’re looking at getting the Flamethrower by the end of wave 2.

Mid Game

If you’re not on suicidal you’ll likely be getting the flamethrower around the mid game. If Napalm is still broken you’re fine just sticking to the Caulk n Burn. Otherwise, grab the flamethrower. It’s an all-around better item than your starting caulk and burn. As soon as you can safely afford it and not be destitute in terms of ammo and armor, do so.

It is around this time that the big baddies are showing up. Scrakes and Flesh Pounds (“FP”) are not to be messed with. Outright ignore them. When you see one coming down your chokepoint, avoid lighting it up. Shoot around it at the enemies behind. When they get close, just back up and let your teammates pull aggro. You’ll be able to walk right around them and resume keeping the chokepoint clear. If you bought the Trench Gun because you’re a rebel, don’t shoot them. They will instantly rage (even if stunned) and it will piss off your team to no end. On harder difficulties it can mean a team wipe. Also, don’t throw a Molotov. Same effect as the Trench Gun. If your team is dead then all bets are off. Run, close doors behind you, shoot wildly with Trench Gun and Molotov. Pray to the Patriarch.

The hidden danger from Scrakes and FPs is that they demand the attention of your entire team. That means before you know it, swarms of small mobs are everywhere and things can spiral out of control quickly. Your job is to let them handle the Scrakes and FP’s while you make sure the trash mobs stay back and out of their hair.

Boss

Switch to a better class. If you insist on continuing as the Firebug there is specific advice on each. Make sure you have both the Flamethrower and the Microwave Gun. You’re going to have to throw one on the ground to get both.

Hans – Pick up the Flamethrower. He takes 120% damage from fire so the Flamethrower is going to be your work horse for this fight. Plus it’s great for clearing the occasional trash mobs that show up.

Patriarch – Pick up the Microwave Gun. He only takes 50% damage from fire so be sure to nuke the Patriarch like you nuke your frozen tv dinner each night because you can’t cook worth a damn.


 

Special thanks to the Killing Floor subreddit and specifically Reddit user demonicdan3 for the excellent feedback and corrections.

Origin No Longer Available in Myanmar

Reddit user trivial_sublime reached the top of the /r/all today after reporting that EA has shutdown access to Origin in Myanmar. The country, located in southeast Asia and hugging Thailand, had sanctions imposed in 1997. Also known as Burma, the sanctions were imposed as a direct result of the army’s refusal to cede power to a civilian government. Over the past five years the United States has been rolling back sanctions due to the slow transition to a civilian government. This finally came to an end in November of last year when Ms. Suu Kyi was elected through Myanmar’s first civilian elections. On October 7th of this year, President Obama signed an executive order detailing the termination of the Burma sanctions program.

“[The then-governing regime of 1997 Burma]… has been significantly altered by Burma’s substantial advances to promote democracy, including historic elections in November 2015 that resulted in the former opposition party, the National League for Democracy, winning a majority of seats in the national parliament and the formation of a democratically elected, civilian-led government; the release of many political prisoners; and greater enjoyment of human rights and fundamental freedoms, including freedom of expression and freedom of association and peaceful assembly.” – October 7, 2016 Executive Order

As a direct result of the termination of the Burma Sanction Program (“BSR”) there are going to be several immediate changes:

  • All individuals and entities blocked pursuant to the Burmese Sanctions Regulations (BSR) have been removed from OFAC’s [Office of Foreign Assets Control] Specially Designated Nationals and Blocked Persons (SDN) List.
  • All property and interests in property blocked pursuant to the BSR are unblocked.
  • The ban on the importation into the United States of Burmese-origin jadeite and rubies, and any jewelry containing them, has been revoked.
  • All OFAC-administered restrictions under the Burma sanctions program regarding banking or financial transactions with Burma are no longer in effect.

For more on the above click here. A more in depth summary of the BSR can be found here:

What is unclear is why EA has decided to implement these changes now with their Origin 10 update and not 20 years ago when the sanctions were implemented. It is especially unclear since U.S. based Steam, offering a similar service, has no such barriers in place. It is important to keep in mind that all of the information we have so far is second hand from a volunteer named DarkAmaranth1966 on the EA support forums. We likely won’t know more until EA makes an official statement or I can get my hands on an Origin 10 update log. Hopefully there is more than “made changes for US compliance”.

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Why can digital distributors do this?

When you use a service like Origin or Steam you are subject to their Terms of Service. Included in this document is this bit of legalese:

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EA and similar companies usually have a plethora of licensing terms similar to this. If you’d like to look over all the ones that a large corporation like EA uses head here.

What the above means is that when you use their service and purchase their games you don’t actually own the games in the way that you might think. In order to understand what’s going on here we need to dive into copyright law a bit.

Copyright Law

Copyright law protects original literary, dramatic, musical, and artistic works such as drawings, written works, music, and computer software. Say you created a painting, song, or story. At the moment of creation, you own a copyright in that product. Registration is available if you’d like to go that route but it isn’t necessary since the right is formed when you’ve completed the work. Now, as a copyright holder in the product you have several rights. You may prevent third parties from copying, converting, or publicly performing the work.  This right isn’t absolute and has some limitations. One such limitation is known as first-sale doctrine.

First-Sale Doctrine

The first sale doctrine creates an exception to your normal bundle of rights. It provides that when you sell something that physically embodies your work (like a book) then you have exhausted certain rights in that product. This means that the person who bought your book dispose of it however he wants. He can burn it, give it away, sell it, or even rent it out. What he cannot do is copy it. Now this applies to video games as well. When you bought Super Smash Brothers for the N64, you purchased a copyrighted work in a physical embodiment (the cartridge). You could do whatever you wanted with that cartridge but you could not copy it. Now this is a problem for gaming companies. If they sell you a game and then you turn around and sell it to someone else, they have lost a sale. Thanks to the explosion of digital distribution software, such as Origin and Steam, companies have discovered a way to get around this bugaboo. Licensing.

Licensing

A license means you have the right to possess something (subject to a contract) but you don’t have ownership of it. It’s kind of like renting something but more complicated. When I sell you a book, you now have ownership over the book but not the work contained within. So you can do whatever you like with the book except copy it. Now what if you could copy that book as easily as a couple taps on the cover? You could just go to a library, rent a book, and then copy it as many times as you wanted. The solution is to have the author hold the book up to your face whenever you wanted and turn the pages for you. If you so much as reached for the cover he could snap it shut and walk off. If you so much as annoyed the author or did anything else on his list of “no-no’s”, he could snap it shut and walk off. That’s basically software licensing (also eBooks).

In the hypothetical above: the book is our game, the author is our digital distributor, and our list of “no-no’s” is our terms of service agreement. Let’s bring this all back to the start. EA has stopped their service for everyone in Myanmar. For whatever reason, “being in Myanmar” is now included on their list of “no-no’s” and they’ve walked off. This could absolutely be some sort of compliance with new government regulation. Now courts don’t always look so kindly on terms of service. You’ve paid for a product and having someone arbitrarily able to take it away whenever they like is frowned upon. So it remains to be seen how things will shake out but the purpose of this article isn’t to speculate but rather dip our toes into the circumstances surrounding this sort of thing. Namely, the revoking of access to games you’ve paid for.

For more information on the issue of video games and the first-sale doctrine check out this excellent law review article by Stephen McIntyre: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2018&context=btlj

-Arthur

P.S. If someone can dig up the Origin 10 change log I’d appreciate it and would like to update the article when I’ve given it a look.

Second Recording Session Woes

You think you have everything set up and now you’re just cruising creating content. It’s a surefire sign that something is about to come along and make you waste several hours fixing. Today I woke up, nuked a cup of coffee, and sat down to bang out some more video. Looks like my laptop restarted during the night and closed everything I had open. Thanks Windows and your curse-ed updates. Bane of my existence. Probably the bane of everyone’s existence.

No worries. I fire up Audacity and get my mic all set up before doing some audio checks. Everything recorded sounds like a whisper and run through a garbage disposal. Like a quiet malevolent garbage disposal. What the hell. Reinstall the drivers. No avail. Switch to the Skullcandy headset because it only sounded quiet and tinny. Nope. Still quiet garbage disposal mode.

An hour or so of fooling around and restarting my computer happens upon a solution. Now I am not a good scientist so I didn’t exactly have a control variable. I was trying multiple solutions at a time and praying for it to work so it could have been either of these. The first change I made was to unplug my portable hard drive because it might be leeching too much power from the USB ports. (Queue the engineer popping in here and telling me that’s not how it works. At least I’ll get closure.) The second thing I did was switch which USB port I was plugging the mic into since sometimes USB ports don’t get equal amounts of power. In any event, one of these two things fixed my issue and I’m recording decent audio once more.

Issue fixed. Time to record. Now I’ve learned my lesson from Shadowplay. That being, don’t use Shadowplay. Instead I’m using Windows and making sure that my mic isn’t recorded in addition to the game audio. I bang out a good hour and forty-five minutes of video before calling it a wrap.

It was a perfect play through. I’m running Skyrim on the Expert setting with a small twist. Once I beat the first dragon I have to delete my character if I die. It adds a bit more investment into your character and makes you play a little more cautiously since you can’t just reload a save any longer. After defeating the dragon I head back to turn in the quest to the local Jarl and show off my sweet new dragon shout power. Nobody is amused by this as much as I am and I end up with a 40 gold bounty and everyone in the keep trying to murder me. I’m screaming, “It’s just a prank bro!” and attempting wildly to yield and just pay the damn bounty. I was unsuccessful and die valiantly. So much for Archduke Flufferbottom. Guess it’s time to cut apart what I have and get everything posted to YouTube.

Only there is one teensy tiny problem. I have all the audio but I only 59:59 of video. That’s strange. Maybe there are multiple files? Nope. Apparently, windows records an hour of gameplay and then will just stop without any indication at all. AWESOME. I guess Flufferbottom lucks out and gets a mulligan on this play through. Note to self: dragon shouts are not treated as pranks. Instead, it will mark you for instant death. YouTube prank channels are so misleading.

I hack together what I have and start getting it uploaded on YouTube. Lesson learned. Guess I’m going to have to relearn how to use Bandicam after all.

First LP Completed

Arrival of Snowball

The Snowball mic has arrived and boy is it sleek and also kind of Orwellian looking. It’s a jet black ball that sits on three prongs and has an ominious red light that glows when it’s plugged in. It’s like some martian tripod surveillance device. All I know is the damn thing better work. I plug it in, open up audacity, and give my best rendition of row row row your boat. She records like a dream and it’s at that point that I realize I have a voice meant for silent film. No matter how much you polish garbage it stays garbage. Just shinier. Oh well. Time to sally forth anyway.

Preparation for LP

I’m messing around before I notice a little tidbit floating through some gaming news sites. Skyrim Special Edition is supposed to drop at 5pm tonight. I would be a kid in a candy store if not for the fact that it costs $60. Luckily, Bethesda decided that just updating a games graphics and then re-releasing it for full price is a bad PR move so they are giving it away for free for anyone who owns all the DLC. I’m not one of those people but I could be… $25 on sale right now? Yeah alright. I’ve been meaning to get around to playing the DLC anyway. Well, one of them anyway. One basically turns your game into a domestic simulator complete with nagging spouse and shit kids that are somehow invulnerable to destruction. No thanks.

I don’t want to redo Metro 2033 so Skyrim came at the perfect time for me to LP. My favorite part is the irony here. Skyrim is The Elder Scrolls V. Both LP’s would be started thanks to Bethesda. Thanks Bethesda. Hopefully this one doesn’t turn out like such a hot mess. I’ll be able to replay a game I’ve enjoyed several times and get to check out the updated graphics at the same time.

While I’ve been upgrading in almost every area the one thing that I haven’t done was switch to a desktop. I have a 2013 Alienware 17 and she chugs along faithfully with my frequent moves and LAN parties. My Geforce 770m needed to get up to speed if I didn’t want to play the NEWLY ENHANCED SKYRIM on low settings. I’m sure that wouldn’t be the case but Fallout 4 still gives me nightmares. Time to learn about overclocking my laptop and if it’s even worth doing such a silly thing. A few hours later she’s boosted and purring happily at some stable levels.

afterburner

The LP

We’re off and rolling. I’ve played through Skyrim a bunch so I enlisted the help of 4chan to get a new character randomly generated. I got a Khajiit (cat person) Paladin with a drug habit and penchant for exercising evil from the land. Plus, the faction I need to follow is Dawnguard. Dawnguard is a faction added in one of the DLC for the game. This is perfect since I have no idea what happens in the DLC. I’ll get some practice in for the part I’m familiar with and then get to experience some new content once I figure things out.

4chan

While playing, it was harder than I thought to give good solo commentary and talk enough so it just wasn’t someone silently playing a game. I tried to come up with stories and share my own experiences a bit to brighten it up but I don’t exactly have an over the top personality to carry the day. Certainly not on the level of people like Pewdiepie or Markiplier. I powered through it and finished the first episode. Time to edit.

Editing

Syncing the audio is always an annoying task but it doesn’t take that long once you get it down. All you have to do is say “One, two, three” and then do something obvious in the game that you can find in your recorded video. Some people like to jump. I like to hit escape or some button that pulls up a menu. Match your audio and footage up and then just delete all the junk beforehand. It’s easy just not exactly the most elegant of solutions.

audacity-commentary

Ah, Sony Vegas 10 you are a cruel mistress. It’s not exactly a set it and forget it type of platform and it required a lot of tweaking before I could get it exporting anything. Then after about 3 hours of rendering my video it just spit out a “Error. Dunno what happened man but it’s not working. You probably messed up.” Thanks Sony. Three hours of rendering for a 30 minute video that ended up ultimately not working was a slap in the face. Some quick googling and it looks like Sony Vegas 10 is not great (or even feasible) for the 1080p content I wanted to push out.

No problem. Time to use my tried and true method of creeping on content creators I enjoy. This time I’m creeping on Spirit of the Law who does some pretty kickass and in-depth videos on Age of Empires II. I get they released a new HD version but the fact that the content is still so popular and dissected is amazing to me. He uses Power Director 12 for his content and I haven’t seen him bitching about it. Time to “learn” a new video editing software.

I lucked out and they were actually doing a free giveaway of their older software (aka PD 12) and had some newer stuff on a big discount. I’m on a budget so if 12 works for Spirit of the Law then it works for me.

Now I have an SSD and a HDD. I only use the SSD for core stuff and maybe memory intensive games like Skyrim or Civilization (load times measure in centuries). My HDD is a pretty respectable size so you can imagine my shock when PD 12 gives me a “Not Enough Space” error when I try to install it. Sure enough, 250 gigs of space has vanished. Most recent thing I was doing was dicking around with Sony Vegas 10 so let’s check my video files.

Turns out, Sony Vegas 10 didn’t actually fail at rendering my previous video. Instead it succeeded at pushing out a gigantic turd of a video weighing in at an impressive 250 gigs. 1080p blue ray rips that I’ve seen have barely been able to scratch the 20 gig mark. Despite its impressive girth it still managed to look like trash. Size isn’t everything folks.

Cleaned up that mess and got PD 12 up and running without issue. Works basically the same as Vegas 10 as far as editing content goes. Rendering and exporting is a breeze. You just pick what you’d like to render and the software does the rest. I did run into an issue where the preview screen just turns green. This makes it impossible to sync the game with the audio since that is your visual cue for lining things up.

pd12-normalNobody could tell me why I was getting this issue but apparently one of the solutions was to disable hardware acceleration. My understanding is that video editing software can utilize your GPU in addition to your CPU in order to render video. For whatever reason, allowing this was giving me a green screen issue. After the change, chopping the video up got a little slower. The program would have to think a bit before implementing the change I wanted. Not great but better than the other options I was faced with.

No other issues and the first part is live!

Skyrim Special Edition – Part 1

First Attempt

Disaster and a waste of several hours. I was playing around with Window’s Game Center and it had the option to record your mic, default is off. Shadowplay had no such indication. It just recorded. Easy peezy. I assumed this meant no hot mic and only the gameplay would be recorded. I was wrong. Audacity recorded my audio and Shadowplay recorded both my audio and my gameplay sound. So since they’ve been mixed into a Frankenstein(ian?) monster I had to figure out a way to potentially make it work. Stripping the audio out sounded impossible and a giant chore even if it was possible with the tools on hand. Maybe I can sync up everything so that my audacity audio perfectly overlays and drowns out my other commentary. Nope. Now I just sound like I’m a choir boy and singing my commentary. Or at the very least there is a spooky echo. Fuck.

Well I might as well check out how the audio turned out. At least Audacity didn’t hurt me… I’m quiet and tinny. Fooling around with the settings is of no avail. Apparently the Slyr headset is only good for Skype and Curse chat and not much else. Time to actually do research into audio recording equipment. SIGH.

The best way I’ve found to go about figuring out your equipment is shamelessly creeping on your favorite LP’ers. I’ve found the answers to my questions everywhere. Sometimes they have websites like this one where it is all listed because they get asked so much. Other times they answer random YouTube comments asking about it. Even more rarely, they might do an AMA on Reddit where they answer questions posed by Reddit’s user base.

My favorite LP group is Best Friends Play and after a little digging on Reddit it turns out they use a Snowball mic. $50 poorer and I’ve ordered a fancy new mic to help me record audio that sounds slightly better than hot garbage. It gets here Wednesday 10/26/16 and then maybe I can make some magic happen.

Until then this project is on hold and I’m out a few hours of my day figuring stuff out. Think I’m just going to scrap the Metro 2033 project. I’d have to re-record everything from the beginning and I’d feel fake redoing it. “Oh ha ha I made this funny comment last time that I’m totally making off the cuff this time around as well!” HA.

Until next time.