A Response to Jake Light’s “VTuber’s Guide to Ethics and Legalities” by a Practicing American Lawyer
Introduction
Currently, there is a guide by VTuber and Malaysian lawyer Jake Light intended to assist VTubers with ethical and legal issues that may arise while being a VTuber. While this is well-intentioned, there are many elements of this document with which I thoroughly disagree and on which I wish to push back. Not only that, but some of his advice contains misunderstandings of American law, especially copyright law and the doctrine of fair use, and of how one should respond to accusations with the American legal system in mind.
This response will address each section of his document in turn.
What Is Ethics?
“If you have to write down your Ethics, you’re already in trouble.”
— Tom Clancy
This section by Light defines what ethics are. This definition is not accurate, but this is admittedly a nitpick. He defines ethics as “a set of moral principles that determines which actions are considered right or wrong.” This definition better applies to morals. Ethics are a set of rules that a society or an organization imposes on its members. Ethics are imposed externally, while morality comes from internal belief. These external rules can be informally understood collectively by a society through their collective moral consciences or can be written down. Because they are an external extension of internal morals, most written ethical rules are considered common sense and are then extended to cover situations where malfeasance has occurred. Many professionals, including doctors, lawyers, and government workers, are held to strict written rules of ethics, but whether those rules are enforced varies. See Congressional ethics rules on stock trading compared to the average increase in net worth for members of Congress.
However, this section contains perhaps the largest fundamental flaw in Light’s entire guide. He states, “However, in order to live harmoniously in any community or public space, we have to compromise certain personal biases and beliefs to achieve that [emphasis added], and it’s the same in the space created by VTubers and/or content creators.” He tries to soften this entire section with “The purpose of this guide isn’t [to] tell you what I think is wrong (at least I try to),” but here he has already said that everyone compromises their morality and personal beliefs.
I understand where this perspective comes from—in many East Asian and Southeast Asian societies, collective harmony is often more important than the individual. This is also often combined with a common moral relativist viewpoint that not everyone’s morals and ethics are the same. However, for beliefs to truly be called principles, they should not be compromised; otherwise, you do not actually hold any principles at all. From a moral standpoint, it is better to be scorned and hated for having principles and standing by them than bending to the whims of others—and by doing so, you ultimately will be seen as authentic by most people over time.
What if I don’t agree with certain ethics/moralities?
This subsection continues to walk back the “we have to compromise certain personal biases and beliefs to achieve that” statement from earlier by immediately stating, “You don’t have to.” That said, many platforms lay out the behavior expected on their platform, including what they consider immoral behavior. This should be taken into consideration when using those platforms, but your actions should be guided by your principles and should fall into the allowable area between where your principles and theirs overlap.
Is there a list of moral principles I should follow?
Here, Jake Light uses the “Community Guidelines,” which are the rules of behavior I mentioned above. However, these are not moral principles put out by these platforms. They may have a moral and ethical basis, but they are generally a set of business and legal decisions that the companies owning these platforms have made to limit liability and business risk. While operating on these platforms, you are bound to follow them, but do not take them as moral rules.
If you are looking for moral principles, pick up a philosophy book or a religious text of your flavor. You are more likely to find actual morality there.
What is Public Relations (PR)?
“Controversy creates Cash.”
— Eric Bischoff
Here, Light defines PR as “professional management of a person’s or organization’s reputation that is known to the public.” This is legitimately a good definition. However, throughout his PR guidance, Jake Light advises VTubers not to create controversy and to stay within the straight and narrow of good taste.
If you are a corpo VTuber or are trying to be a corpo VTuber for a Japanese or other East Asian company, this may be good advice. This is also how many lawyers would advise their clients to behave when engaging with the public, because lawyers are notoriously risk-averse. And there is a market for wholesome, seiso content that does not rock the boat.
However, not everyone needs to follow this advice. VTubing is entertainment. And in entertainment, to quote Eric Bischoff, who turned a struggling WCW into a juggernaut that challenged the WWF monopoly, “Controversy creates Cash.” There is also a market need for entertainers who push the envelope in funny and creative ways. There are dozens of VTubers who have pushed the envelope and become wildly successful for it. But this is a business decision, and VTubing, at the end of the day, is a business. Do you grow slowly and organically, using personality or your voice to grow? Or do you discuss taboo topics, crash out, and create content that is widely clipped but turns off sponsors and other business partners? And how “hard in the paint,” to use basketball terminology, do you go?
In addition, Light does give some practical advice in this section. In the “Who Needs Good Public Relations?” subsection, Light gives the following advice:
If you do put out content in a way that may be controversial, unethical, illegal or unprofessional, [emphasis his] chances are those people making judgments will start making public allegations against [you], aka Call Outs. [emphasis his]
If you do not resolve these “call outs” in a professional manner, there is a high probability that it will further negatively affect your reputation, mental health and your future career or interests as a VTuber.
These “Call Outs,” as he puts it, are often brigading and may happen even if you are perfectly seiso and uncontroversial. Many are done by trolls looking for a reaction. Because of this, many can simply be ignored, because acknowledging them gives them power. Given enough time, many of these “Call Outs,” if ignored or simply acknowledged with “I’m aware of this and don’t respond to trolls,” will burn themselves out. However, risk-averse sponsors may demand action, especially if the Call Outs start to gain traction, and they may need to be addressed in some fashion at that point. A PR professional specializing in VTuber matters would be an ideal resource to engage when such occurs.
Additionally, some Call Outs may be a genuine attempt to point out mistakes that one has made and seek to correct those mistakes. An example of this would be the VTuber Saba going on an indefinite hiatus, failing to provide any updates, and failing to pause sponsorships for her channels. Eventually, the controversy reached the point that Saba was forced to take corrective action and did so, pausing sponsorships until she is able to. Her failure to do so in a timely manner, however, has done immense reputational and financial harm to her, her channel, and her community, especially since she was once beloved as the “reincarnation” of the face of Hololive-EN, Gawr Gura. If the criticism is genuine, then it should be taken under advisement and corrective action taken as early as possible. Even an acknowledgment that you are aware of the criticism and are working to correct the mistake, assuming that statement is genuine, may be enough to prevent further reputational damage. However, such a statement without timely action following will be seen as PR spin and do more harm than good.
Finally, some Call Outs may be defamatory, being made to intentionally destroy your reputation and consisting of statements taken wildly out of context and outright falsehoods. These Call Outs will often directly go after your sponsors and anyone you collab with, intentionally trying to isolate you socially and ruin you financially. In these cases, contacting legal counsel for further advice and action is what is needed. A VTuber who engages in controversial subject matter, such as politics, is at high risk of this sort of Call Out occurring and should build a relationship with an attorney in their jurisdiction specializing in VTuber matters in order to best combat these defamatory actions early. Probably the best example of an individual being defamed and then using legal counsel to prevent further damage is Kirsche and the allegations against her of being a white supremacist. When the allegations began to appear in publications such as Vice, she engaged legal counsel to demand a takedown of the defamatory article and a retraction, which Vice complied with. However, the PR damage was done, and collaborations with some other VTubers, including her personal friend Pipkin Pippa, became untenable; she lost sponsors due to the reputational harm caused, and on social media, she is still often maligned due to the accusations.
Zan-VT (@ZanVT_INC on X), a PR consultant specializing in VTuber matters, is a much better source than I for public relations on X, and his own review and response to Light’s guide can be found here: https://www.youtube.com/live/2f79rOKY4Uw. For purely PR concerns, I would defer to his advice, but believe what is written above is good general guidance.
Social Interactions
“Internet Friends are Not Real Friends”
— Common Early Internet Saying
This entire section is a continuation of the PR section from before, with each subsection giving a piece of advice rated from High to Low Priority. The first piece of advice, given High Priority, is to attempt to make genuine connections or friendships with others. In order to be successful, you do have to network. However, this piece of advice fails to take into account two elements: (1) VTubing is a business, and (2) you don’t always have to like your coworker to be able to work with them. Light portrays relationship building for business purposes in a negative light in the VTuber community, but this is an unfortunate reality for every business venture. Many people do find genuine friendships through VTubing, and collabs between genuine friends are more authentic and fun to watch for the viewer, but being able to work on screen with people you don’t like is an advantage for both corporate VTubers and indie VTubers.
The second piece of advice, rated Medium Priority, is “Be very sensitive and hesitant to talk about certain matters.” This section generally says not to be “threatening, demeaning, shaming, or insulting to vulnerable groups of people.” It refers to the Twitch Community Guidelines but notes that these guidelines are rarely enforced fairly (a gross understatement). However, it then walks the advice back, saying that it is “understandable or even commendable” to take public stances in certain cases, but that care must be taken when doing so. Generally, this entire section can be summarized and better communicated in one sentence: “Don’t be an asshole.” Additionally, if your niche as a VTuber is covering current events or politics, talking about “certain matters” may be unavoidable, and it will result in controversy. This is a PR and business decision. There is a market for such VTubers and IRL streamers, and some of the most successful indies are in this space, but they are controversy magnets. Overall, the first piece of advice is more important for corpo and more “seiso” VTubers but may be entirely inapplicable to some VTubers, depending on their niche.
The third piece of advice is “Consult a third party’s unbiased opinion.” This is generally good advice, because you may not have considered all possible issues due to your own bias. Where the issue lies is that Light rates this as a “Low Priority.” This should be considered a High Priority. Always seek out advice. Even if you don’t follow that advice, simply taking it into account can aid in both your decision-making and execution.
The fourth piece of advice is to “Remain calm and collected.” Light advises taking time to calm down and think through things rationally before making a reply, as well as reaching out to others. This is genuinely good advice for responding to serious matters; however, Light rates this as “Medium Priority.” It should also be rated as “High Priority.” Emotional decisions can easily lead to mistakes that make the situation worse and create a negative feedback loop. However, for an unserious matter, or if controlled for a semi-serious matter, an on-stream response can make extremely entertaining and clippable content. This is a call that requires you to know yourself and your on-screen persona, and depends on the situation and the person.
The next piece of advice is to “not dismiss or ignore all accusations or controversial matters related to you,” and is rated as low priority. This is, in part, immediately walked back with “normally the best course of action is to deny or ignore it.” This walk-back is in line with my own advice given earlier when discussing Call Outs—most are trolls, and it is best to ignore them. He then advises that if there is some evidence that is either true or could be taken out of context, then more serious measures have to be taken. He advises putting together a professional statement with individuals you trust. Instead, I advise following the advice I gave in response to the previous “Call Out” section—engage the services of a PR advisor, or if defamatory, an attorney licensed in your jurisdiction.
Next comes the PR advice from Light that is extremely shocking, coming from a lawyer and runs counter to the advice that every practicing attorney would give—“Take accountability and give genuine apologies.” I cannot emphasize this enough:
DO NOT APOLOGIZE OR ADMIT FAULT OR LIABILITY WITHOUT SPEAKING TO AN ATTORNEY FIRST.
This is especially true for American VTubers or those in business relationships with American companies, and since most internet platforms are owned by American corporations, American law is often applicable. The reason for this is Federal Rule of Evidence 801(d)(2), which provides that a statement is not hearsay and therefore admissible as evidence if the statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
Fed. R. Evid. 801(d)(2). If a party’s claim, defense, or potential liability is directly derived from a declarant or the declarant’s principal, a statement that would be admissible against the declarant or the principal under this rule is also admissible against the party. Id.
An apology, if not painstakingly worded, is a party admission and can be used against you by a plaintiff or by the state in a criminal case. And once an admission is out there, it becomes extremely hard for a lawyer to defend you against a civil suit or a criminal prosecution. Some jurisdictions, including the District of Columbia, in which I am licensed, do have statutes limiting liability from public apologies. However, making such an apology and then denying liability during testimony can bring the apology in for impeachment purposes, creating a credibility issue for the finder of fact (either the jury or the judge in a bench trial).
Light does give examples of bad non-apology apologies, such as the Afroman defense (i.e., “Because I got high”), which are generally bad moves (unless it is not a serious matter and can then be funny), but two of his three steps—acknowledging the harm and not deflecting or minimizing—will lead to admitting liability. (That said, the third step, taking genuine action to undo the harm, referred to in the rules of evidence as “subsequent remedial measures,” is not admissible due to the public-policy consideration of ensuring that remedial actions are actually taken and not disincentivizing them.)
Light’s final advice for Social Interactions, to respect people’s privacy and be cautious when having private conversations, is rated as a Medium Priority. Generally, doxxing private conversations is considered a jerk move, even outside the VTuber sphere. Additionally, it may result in an NDA being broken if a friend is privately gushing about news that is under NDA and not subject to release, or it may waive privilege if it is between you and your attorney. However, there are situations where it may be necessary to drop receipts, especially if exposing harassment. That said, one should always lean toward keeping private conversations private.
Branding
“Chat Reflects the Streamer. Streamer Reflects the Chat.”
— Common Internet Saying
This section is similar to the previous section, giving specific PR advice relating to branding, with each item rated at different priorities. The first two pieces of advice—“Have ‘Rules & Etiquette’ in your streams and your community space” and “Make sure that hate, negativity or controversy is not part of your brand/content”—are rated High Priority. Generally, having some sort of written rules as a reminder to chat is helpful but generally not necessary due to the TOS for the vast majority of VTubers. However, both pieces of advice are situational depending on the type of VTuber. If you deal with controversial subjects, or your persona is a hot-take artist, controversy is your entire brand. And if controversy is your brand, you may want to have more stringent rules for your chat due to the Eye of Sauron having intense focus on your chat. Or, if you are part of a Japanese corpo, you may be forced to be seiso and force chat to be seiso.
Light also advises to “Critically consider joining/forming a group of VTubers” and rates this advice as Medium Priority. The phrasing of this is awkward, but essentially, he advises care when joining or forming a group due to their informal nature, leading them to be fragile. These groups can be good for networking, but they are fragile and are not for everyone. Additionally, you and the other VTubers may informally have created a general partnership if doing business together, such as doing merch together, and it may behoove the members to actually sit down, discuss your mutual business, and choose a different business structure, such as an LLP or LLC, for tax and business purposes. In such cases, discussions with an attorney would be advised.
Light next advises being wary of participating in questionable events, rated Medium. This is again situationally applicable depending on your content and persona. He also advises not to respond to criticism of participating in such events with statements like “I don’t know and don’t care,” or “cry more, I do what I want,” or “I don’t know and I don’t care.” Depending on your persona, these responses may be on-brand and appropriate, or they may be grossly inappropriate. His advice in this case, I believe, reflects a general aversion to controversy from lawyers and attorneys.
Light also advises that your community reflects your branding and rates this advice as High Priority. As it is said, chat reflects the streamer, and the streamer reflects the chat. That said, you cannot control other people. You can bonk individuals in your chat when they misbehave and you can discourage behavior in your chat, but never take responsibility for your chat’s actions. If you do, socially (not legally), you will be held responsible for them, and you are not their mom or dad.
Collaborations, and Your Community Reflects Your Branding
These two sections are just a continuation of PR rules and essentially expand upon the principles of making sure that collaborations are conducted with clear expectations and that your community reflects your branding. As for collaborations, this is good advice. As for your community reflecting your branding, that has been discussed in the branding section.
VTuber Agencies/Managers
In this section, rated as High Priority, Light advises VTubers to thoroughly vet VTuber Agencies and Managers before working with them. This is good advice, full stop. There are benefits to working with an Agency or a Manager, and there are also drawbacks. Light does a decent job of explaining some of those drawbacks, including not being as personally involved in all aspects of your brand, having less flexibility and freedom in the content you can create, and limits on how you can interact, as well as copyright concerns. He also correctly notes risks, such as Managers and Agencies going bankrupt (see VShojo), abuse of power by the Managers or Corpo (id.), unethical/illegal practices (id.), and mismanagement by the Manager or Corpo (id.). However, two important pieces of advice are not given by Light. The first is simple but blunt: DO NOT HAVE SEX WITH YOUR MANAGER. This creates a massive conflict of interest and is an ethical landmine. There is a reason attorneys are not allowed by their codes of ethics to pursue relationships with clients. The second piece of advice is that when vetting VTuber Agencies, hire an attorney. An attorney is much better equipped to vet the agency for you and may immediately flag concerns, such as cross-border legal issues, that a contract with an Agency may invoke.
What are Legalities
Ignorantia juris non excusat.
“Ignorance of the law does not excuse.”
Light uses the term “Legalities” for legal issues and obligations, which is awkward terminology for many. In this section, he quickly discusses how they come into force, notes that you may incur liability or legal consequences for failing to follow the law (obviously), and then gives the classic lawyer answer for how much of the law you need to know: It depends. He correctly notes that unless you know your legal rights and duties, you cannot properly defend yourself from accusations of misconduct and liability, both civil and criminal, and lists areas of the law a VTuber might need to educate themselves on, although he phrases it awkwardly as the type of people who need to know about “legalities.” He then gives the single best advice he gives in the entire guide: “It is always best to seek out professional legal help.”
Copyright (And other IP not mentioned by Light)
Light quotes the Cambridge Dictionary here to define copyright as “the legal right to control production and selling of a book, play, film, photograph, or piece of music.” However, I prefer the definition from Black’s Law Dictionary due to its precision: “A right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.” He then correctly but incompletely explains that copyright comes into existence as soon as a work comes into existence. To be more precise, as soon as a work is created, in part or in whole, the work has copyright protection, even if it is unpublished. In fact, unpublished works typically receive stronger protection under copyright law than published works, although to recover statutory damages in addition to compensatory damages, the work must be registered with the U.S. Copyright Office under U.S. law.
This goes to the entire purpose of copyright—to ensure that creators are compensated for their creations and are incentivized to create more, but also to ensure that such works lead to cultural enrichment, similar to how patents compensate inventors for their inventions but eventually must expire. In fact, in the U.S. Constitution, the power of Congress to create laws establishing patents and copyrights comes from the same clause and is one of the few explicitly enumerated powers of Congress: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I, § 8, cl. 8.
He notes that a copyright holder is able to prevent others from using their works “without license or permission.” This begins a theme throughout the entire Copyright section—Light does not have a full or complete understanding of transformative use and the fair use doctrine, and his advice has a chilling effect on the ability of VTubers to create content that is indeed transformative. As far as non-transformative use, however, Light is correct in broad strokes. Light then lists the types of creative works that a VTuber may use that may be copyrighted, including models, art, emotes, art assets like layouts, music, published video and audio content, and written works.
He correctly notes that copyright is just one form of intellectual property, but states he will not be going over the other forms of IP since VTubers “rarely (if not ever) use or encounter them.” This is not strictly true. Trademarks are a form of IP that VTubers use and interact with as a part of their branding. As defined in Black’s Law Dictionary, a trademark is the term “given to a recognizable name, marking or term that a company can by law use to identify itself and its products.” Trademarks can be a word, name, symbol, design, combination thereof, or even a color that is used to identify a product or service, with the purpose being to prevent consumer confusion about the source, sponsorship, or affiliation of the product or service. For a VTuber, this is your name, your character design when used to promote your streams and your merchandise, your logo, and may even extend to your oshi marks when used to promote you. There is common-law protection in the U.S. for trademarks, leading most not to register their trademarks. However, it is advisable for VTubers to register their trademarks with the U.S. Patent and Trademark Office in order to enable them to sue in federal court to protect their trademarks.
To qualify for trademark protection, a trademark must: (1) be used in commerce, meaning that you actually use it to represent you and your brand (or intend to use it); (2) be distinctive and not generic (e.g., the word “VTuber” would be too generic, but “Pipkin Pippa” would not); and (3) be non-functional, meaning that only the parts of a design that do not serve a physical (or software) function can receive trademark protection. For the third element, this is because patents are the IP protection for functional features.
Light also does not mention patents, the IP protection for inventions or innovative functional features, but here Light is likely right not to explain them, since the vast majority of VTubers are not inventors or engineers, or at least are not as part of their VTuber persona. However, if you are one of the few, it is advisable to contact a patent attorney specifically to assist in obtaining a patent to protect this IP.
Who Owns the Copyright of a Creative Work? And Licenses
Here, Light correctly points out that generally the author or creator of a creative work owns the copyright for it, and he lists the various creatives who might own partial copyright, including the VTuber who had the original idea and designs, the artist who made the actual art, and the rigger who is tasked with rigging and animating the model. Each would own their creative portion of the model. However, Light fails to mention that if the work is done “for hire,” meaning that the artist or rigger is specifically hired by a client or company to create the creative work for the client or company, then the client or company who hired the artist or rigger would own the copyright. This is not always clear, and it is advised that when contracting artists or riggers for models, the parties make clear for both sides who owns what rights. Additionally, rigging a model is usually considered a derivative technical work building on an existing copyrighted work, and they may not be able to fully enforce their copyright—copyright infringement cases largely hinge on what is considered “the heart of the work,” and it is more likely than not that rigging would not be considered “the heart” of the work—but litigation is expensive and best avoided.
Light then correctly points out that if you do not own the copyright, then you will need to be granted a license in order to use the creative work. These licenses are often specific to the type of work being licensed.
Copyright Infringement & “Don’t Rely on Fair Use”
Light here explains that using a work without legal permission is copyright infringement, and then explains the consequences based on what different parties might do. However, he appears not to have a full understanding of how copyright notifications under the Digital Millennium Copyright Act (DMCA) work.
He correctly points out that a copyright owner will often send a cease-and-desist (C&D) letter to attempt to stop you from using the copyrighted work. These C&Ds do not have legal effect—they are a warning of future consequences, including litigation. Sometimes C&Ds are even sent by parties that do not even have the rights to the creative work and instead are meant to intimidate or force a settlement, or are sent against works that clearly fall into fair use or a transformative use such as parody. Should a C&D fail, the copyright owner may then pursue litigation in U.S. federal court to recover damages from your infringing use and prevent further infringing use. Federal court is expensive, however, so this is not always pursued.
What is more likely, especially for VTubers, is that the copyright owner will instead send a notification to one of the online platforms hosting your content through their DMCA notification system. The platform will then take down the work and notify the person who posted the offending work. The person who posted the offending work will then often have an opportunity to send a counter-notification, which will have to include their information at which they can be legally served process. This is because in the next step, the copyright owner will have the choice of either not pursuing the matter further, at which point the content will be put back up by the platform, or pursuing the matter in federal court, which requires the copyright owner to serve a lawsuit for infringement upon the offending party.
Because of this, many VTubers elect not to fight copyright claims, due to the possibility that it can be used to dox their real identities. However, by using an attorney to submit the counter-notification on your behalf and waiving personal service in the case of litigation, VTubers can still send counter-notifications in the case of DMCA claims and protect their identities, at least until the suit is actually filed.
Additionally, Light points out that many platforms, including Twitch and YouTube, have automated DMCA claim systems that will issue “strikes” against an infringing channel for posting infringing content, or may keep videos up but redirect ad revenue to the copyright holder, or will automatically mute infringing music, and that with enough strikes will automatically delete the channel. Often, these strikes can be successfully appealed if the content falls within fair use or is for a transformative work, but not always, due to many of the appeals systems being automated or those doing the appeal being insufficiently trained and under immense pressure.
Where Light massively falls short is his misunderstanding of the fair use doctrine. The blanket statement “Don’t Blindly Rely on Fair Use” is correct, but the devil is in the details. First, he says to “Don’t ever assume [you] have the right to fair use without being given legal advice by a lawyer first.” I have a perverse incentive to agree with this, since this would generate fees, but instead, I am going to disagree with this statement. Fair use is based on four factors:
1. The purpose and character of the use. Fair use is favored when the use is for nonprofit, educational, or transformative uses. Transformative use is extremely favored under recent case law. Transformative use means that the meaning of the work is being changed by the use. This can be for commentary, such as reacting and commenting on how the original work was made, or adding significant context to the events shown in the original work, or be a parody of the original work. A parody need not be funny; rather, it should comment on the work and change its meaning by how it both uses and changes the original work.
2. The nature of the original work. Factual works are easier to justify under fair use than highly creative works like art, music, or fiction, but if the other factors weigh in favor of fair use, then even highly creative works may qualify for fair use.
3. The amount of the work used. This is both quantitative and qualitative. There is no set percentage, but using an entire work is going to be disfavored unless it is necessary, and using the “heart of the work,” meaning the core of the work that gives it meaning, is also going to be disfavored.
4. The market effect. The use must not act as a replacement for the original or damage its market value.
Fair use is a defense. However, unlike Light’s statement that “you are admitting you have committed copyright infringement” [emphasis his], instead, you are claiming that you used the work for a lawful, transformative purpose.
Light is correct in saying that fair use determination is made by a judge during a copyright infringement suit. However, an attorney making a DMCA counter-notification or responding to a cease-and-desist on your behalf may successfully argue these factors to get your content and/or channel reinstated and dissuade further litigation by the party making the DMCA claim. Light additionally claims that “These requirements to use fair use [are] not easy to fulfill, especially for your average VTuber.” This is also untrue. Even for VTubers who rely on react content, as long as they provide sufficient commentary on the work they are reacting to, they will likely fall within the bounds of fair use. This does require making actual commentary on the content beyond just base-level reacting. A Hasan-style “chair stream” is likely not within the bounds of fair use and invites a DMCA claim, if not expensive litigation.
Light does correctly note that not every country has a fair use doctrine and that it will often differ from jurisdiction to jurisdiction when it does exist. However, most platforms are based in the United States and operate under U.S. copyright law, including the DMCA.
Generative AI Content
Light’s misunderstandings of American jurisprudence when it comes to copyright continue here. Light claims that “Based on my understanding, Gen AI content is most certainly, if not always, [infringing] on other people’s copyrights.” In this, he cites that many generative AI models have been trained on copyrighted material. This is a misunderstanding of how “authorship” works under U.S. copyright law. In Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), which held that purely AI-generated works are not copyrightable, the D.C. Circuit stated that “the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself. The Copyright Office, in fact, has allowed the registration of works made by human authors who use artificial intelligence.” Id. at 1049. The Supreme Court denied certiorari, leaving the D.C. Circuit’s ruling intact. Additionally, per the U.S. Copyright Office’s report on AI, “The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts essentially function as instructions that convey unprotectible ideas. While highly detailed prompts could contain the user’s desired expressive elements, at present, they do not control how the AI system processes them in generating the output.” U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability 26 (2025), https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf.
What this means practically is that AI-generated content is not infringing, but content that was generated purely based on an AI prompt is not copyrightable, with the Copyright Office arguing that “when a user [metaphorically] spins the wheel dozens of times until they land on an output they like … such activity should not give the user a right to claim ownership of that output.” Id. However, generative AI can be used as a tool when creating copyrightable works. For example, if one used generative AI to lightly edit an image that one already had full copyright to, the resulting work would still fall under the original work’s copyright protection. It should be noted that the Copyright Office reviews AI-assisted works on a case-by-case basis and may grant copyright protection only to some elements of the partially AI-generated work.
Obviously, AI is a hot-button issue with the VTuber and various other communities. However, the discussion requires a correct understanding of the law. Light’s blanket statement is inaccurate and hurts the discussion, regardless of which side one falls on this issue.
Games
Once again, Light’s misunderstanding of the fair use doctrine proves fatal to his guidance. He again claims, “Playing games on streams or uploading gameplay to video sharing platforms is mostly, if not always, considered an act of copyright infringement.” Whether or not streaming the playing of a video game or uploading a Let’s Play of a video game is infringement depends on the purpose and whether the stream or video is a market replacement for the game. However, that use must be transformative in such a way that it provides commentary on the game; otherwise, it takes the “heart of the work” and becomes a market replacement for the game. Light does note that some video game developers have taken action against both streamers and Let’s Play content creators. Nintendo, for example, is notably litigious. Other game developers are less so and even rely on streamers as advertising for their games.
Music
Here, Light does a good job of explaining the different types of licenses to music that are available: master licenses, which give full use of the original recordings; mechanical licenses, which give the right to reproduce the melodies and vocals with your own voice and instruments, such as for covers; synchronization licenses, which allow for visual recordings of performances of the song; public performance licenses, which allow for the performance of the music in public; and theatrical licenses, which allow for the performance of the music in private, for-profit venues.
He is mostly correct that one needs a license to perform or play music whose copyright is owned by someone else; however, notable exceptions occur, such as in parody. Parody must be transformative and change the meaning of the original work; however, even then, it is recommended to seek permission from the copyright holder (and original artist) before creating parodies.
Additionally, as a practical matter, there is an entire library of music that is royalty-free or available under “copyleft” licenses that one can use during their streams if background music is needed.
Visual Art
Here Light separates work into three categories: original artwork, fanart, and commissioned artwork. He is mostly correct that copyright generally goes to the original artist, who then may use it freely, but ignores that this artwork may then be licensed to someone else or the copyright to it sold.
As for fanart, his misunderstanding of fair use strikes again. Some fanart is infringing but generally tolerated. Other fanart is clearly parody, thus transformative and within fair use. As a practical matter, going after artists making fanart for copyright infringement is generally a career-ending moment for a VTuber and a poor business move for a VTuber agency or other rights holder.
As for commissioned artwork, without a written work-made-for-hire agreement, the artwork’s copyright remains with the artist, and the commissioner is only granted a license. Therefore, it is advisable to negotiate who owns what rights when commissioning artwork.
React Content
React content was discussed earlier in this response, but to reiterate, Light does have a misunderstanding of fair use. Given sufficient commentary, given that only enough of the work is used to provide said commentary, and given that React content is not a market replacement for the original video, React content can be transformative and fall into fair use. Light is correct, however, in noting that react content is the most risky to create legally and invites DMCA claims and strikes, valid or otherwise.
As with other fair use questions, a content creator must ask: “Are they watching this for what I’m doing, or are they watching this because they don’t want to watch the original creator?”
Contracts & Agreements
Light defines contracts as “legal documents that list down the contractual obligations between parties that have agreed to it.” This definition is recursive and is not a complete or even correct definition.
A contract is an agreement between two parties consisting of:
• An offer;
• An acceptance of the offer;
• Entered into with the assent of both parties (a “meeting of the minds”);
• For due consideration from both the offeror and offeree;
• That is legal under the laws under which it is formed; and
• By parties that are of legal age and sound mind to enter into the agreement.
Contracts can be written or verbal. However, under a legal rule known as the Statute of Frauds, certain contracts—such as for the sale of land, for goods priced over $500, for marriage, to assume the debts of another, or contracts that cannot be completed within a year—require the contract to be in writing. The writing does not have to be formal and can be as simple as a handwritten note, and only has to be signed by the party who would be held responsible for breach in court.
Breach is defined as violating or not complying with the terms of the contract. If a contract is breached, the other party under the contract may sue for damages or to seek performance under the contract, depending on the terms of the contract, the amount of work already performed under the contract, and the financial damage as a result of the breach. Sometimes, breach may be excused by one party, or the parties may seek to renegotiate the contract in light of the breach.
Much of Light’s advice in this entire section can either best be summed up or superseded by the following words: “If you are unsure, contact a lawyer to assist you with the contract.” This includes his “How do I Know What Terms are Fair or Unfair?” Light is correct in noting that one should attempt to negotiate contracts; however, some contracts, such as YouTube’s and Twitch’s Terms of Use, cannot be negotiated. These unilateral, “take it or leave it” contracts offered based on the offeror’s disproportionate bargaining power are known as “contracts of adhesion,” and while they are valid contracts by default, courts typically interpret these contracts most favorably to the party being forced to “take or leave” it. Many people make the mistake of not reading these contracts, and Light makes the correct assertion that one should read these contracts, especially terms of service, at least once whenever they are updated, in order not to be in breach of their terms.
There is one subsection in particular requiring pushback—“Should I make my own contract?” Here Light states, “Yes. If you are in the position to make a contract, it’s best to be able to put down what you personally want out of a contract.” Not every contract needs to be written by a lawyer, or even written down, but before entering into a contract, it is strongly advised to contact a lawyer beforehand. This is especially true if it falls into the Statute of Frauds and needs to be written down. Light does walk this back a little bit, stating that it is “best to consult a lawyer to help you draft a contract if writing is not your strong suit or if the stakes are that much higher.” Even if writing is not your strong suit, it is best to contact a licensed attorney in your jurisdiction. The said attorney will be aware of the applicable laws and will make sure that the contract is a valid contract under said laws.
VTuber Agencies/Managers
Light here dedicates a subsection to either joining an Agency or hiring a Manager from a contractual perspective, explaining that the benefit is that the VTuber can focus on performing while the Manager handles much of the business and community-relations side of being a VTuber.
Light here states that even before agreeing to a contract with either a Manager or Agency, it is best to vet them. As I stated before, an attorney is the best individual equipped to vet either the Agency or the Manager for you.
The first way to vet an Agency or Manager Light recommends is to find the legal entity that the Manager or Agency is using to enter into contract with you—i.e., whether they are a corporation, a partnership, an LLC, or a sole proprietorship/individual. Individuals operating as one-person corporations or LLCs is actually extremely common for tax reasons—as an example, I operate my firm as a one-person PLLC (Professional LLC). As will be discussed later, forming a business entity such as a corporation or LLC may also be the proper move for a VTuber to protect their identity. Light states that there are governmental agencies that can identify them. You can typically find this information for U.S. companies on each state’s State Corporation Commission or Secretary of State website. For British companies, Companies House is the equivalent. For companies in other jurisdictions, Google is generally your friend.
As for legal status, the next thing Light advises you to check, for U.S. companies and individuals, is a search on PACER, the database for federal cases, for bankruptcies and federal judgments, since bankruptcies are always federal cases in the United States. As for other judgments, attorneys will usually have access to some sort of legal database such as vLex, LexisNexis, or Westlaw to search courts across the United States and even internationally, and many courthouses provide access to these databases through their legal libraries for the public.
As for credibility or reputation, Google and searching social media posts can help. Having industry contacts can help more. Again, an attorney with experience in the industry is probably the best resource.
Light states that “not being able to keep a copy of an agreement without agreeing to it first” is a major red flag. This may be true for individual managers, but many contract terms for agencies are sometimes considered trade secrets and may be under NDA. However, they should be able to provide you a copy of the agreement with an attorney. Attorneys are under the attorney-client privilege and are able to keep this information confidential. If a company is not willing to allow you to share the contract with an attorney before you sign, this is a major red flag.
Additionally, Light states that not being able to negotiate is suspicious. This is not necessarily true—larger VTuber corporations, offering contracts to new or smaller VTubers, may offer them standard contracts where there is not a lot of wiggle room for negotiations. Still, there should be some minor room for negotiations.
Light lists terms that a VTuber will want to consider in a contract with an Agency or Manager. They are below:
• Whether you are being contracted as an independent contractor or employee. Generally, most VTubers are going to be considered independent contractors. The exception is when the VTuber is going to be taking on manager responsibilities as well, in which case they may be an employee, or alternatively be an independent contractor and compensated as such for their VTuber duties, and then on payroll as an employee for manager duties. However, this can vary from agency to agency, and ultimate classification depends on the facts of control under applicable legal tests.
• Compensation, including when and how
• Transparency as to how the services are provided
• Whether asset costs are borne by the Agency or Manager, or by the VTuber. Usually, starting assets are provided by the Agency, with the VTuber being able to pay for additional assets
• Who owns the IP assigned to the VTuber. For corpos, the Agency will initially own the IP, but there may be a path to the VTuber taking possession of the IP later on.
• Limits on the type of content that the VTuber is able to make. Usually, East Asian agencies will have more restrictions.
• Limits on how VTubers can share their opinions and who they can date—the latter is especially common with East Asian agencies, due to how VTubing is descended from East Asian idol culture
• Limits on collabs
• How sponsorships are handled
• How the finances of the VTuber are handled—this is more so for individual managers than corporations
• Remedies in case the Agency or Manager fails to perform, or if the VTuber fails to perform
Light mentions the Ironmouse–VShojo situation and notes that legal action may be necessary if an Agency or Manager fails to perform. In such cases, contact an attorney in your jurisdiction.
Artistic/Creative Works and VTuber Models
Here in these two sections, Light describes the terms for contracting with a single artist or creator, and then with multiple creators. Light lists three main terms that a contract with an artist will typically include: the purpose of the commission, copyright/licensing between parties, and alternative remedies if there is breach, such as changes or improvements. Generally, in personal experience, a lot of art contracts are informal unless being done for a model, but it is always advisable to clearly lay out each of these terms and reach an agreement on each while negotiating with an artist. There are also platforms that will not let you negotiate specifics—Skeb, for example, the copyright remains with the artist, and the resulting art is always the artist’s interpretation of the commissioner’s original request, with no ability to request changes under the platform’s Terms of Service. This makes Skeb inadvisable for models, but for one-off promotional art, it may serve as an inexpensive option.
Where contracts may begin to get more complicated is with models where multiple artists and riggers are involved. The model will often be a de facto trademark for the VTuber as well. In these cases, it is highly advised to negotiate full copyright to the art of the model, so that additional art for the model, such as outfits and rigging, can be commissioned without running afoul of the original artist’s copyright, with the rights laid out in a more formal document.
Owning the rights to your own model as an indie is also advisable for merchandising purposes. Fillan, notably, got into hot water when Good Smile Company attempted to make a figure of her model, only for the original artist to assert their copyright and kill the deal. Politics/culture-war VTuber Powdur has been in a dispute with the copyright owner of her model, who has attempted to use their copyright to attempt to censor her. I have discussed this more in this blog post: https://www.jwh3law.com/blog/why-you-should-own-your-vtuber-model.
Additional Legal Issues Not Covered by Light’s Guide
Perhaps the biggest gaping hole in the guide is the importance of keeping your IRL identity confidential. VTubers are in an extremely parasocial industry, and this can go double for lewdtubers and GFE/BFE VTubers. Keeping one’s identity confidential is important for one’s personal safety. VTubing is descended from the Japanese idol industry, and there are too many incidents of idol fans stalking their favorite idols, sometimes with disastrous consequences. One tool in the toolbox for keeping one’s identity protected is the use of kayfabe. Kayfabe is a wrestling term for the fictional world and identity of wrestlers projected onto the real world, acting as if the role of the wrestler is real. Although the primary purpose of kayfabe was to convince fans that what happened in the ring was real, it was also used to protect the identity of the wrestlers and their families, especially those of heels, although often wrestlers would go in the opposite direction, staying “in kayfabe” in front of their own families so they would not spill all of the secrets. Many of these techniques can be applied to VTubers in order to hide their location and real identity.
Another tool is to ensure that separate accounts are maintained both for the VTuber identity and your IRL identity. Many VTubers are accidentally doxxed through Discord and Steam notifications. Using separate accounts can prevent this from happening.
Another technique to both protect a VTuber’s identity and to limit financial and tax liability is to form a business entity, such as a corporation or LLC. This allows copyrights and trademarks to be registered under the business entity’s name, making it harder for the VTuber to be unmasked. It should be noted, however, that in the United States, only Wyoming and Delaware allow the creation of relatively anonymous LLCs through a registered agent; other jurisdictions require the information of the officers of the corporation or the partner(s) for the LLC or LLP when the entity is formed. It is recommended to speak to an attorney in your jurisdiction for more information regarding forming a business entity.
Taxes are another major hole in Light’s guide. It is strongly advised to speak with an accountant and/or tax attorney in your jurisdiction to ensure all taxes are paid on your income as a VTuber. The IRS is not an agency one wishes to upset, and not paying the proper taxes can lead to them making your life hell.