You can write criticism or commentary that includes bits of the original work and make money selling that new work.

You can't give a free concert and argue that it being free makes that music performance fair use.

In this case one is taking art for sale, and using it as art for sale. Its possible some can view high prestige art and low prestige art as separate markets but I don't really. In my mind its more akin to taking a novel and abridging it to a novella. Same fundamental market.

When the new work gets used in new ways, those new uses might be infringing.

However back to the wikipedia Fair Use article: "(...) the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use." and regarding the use of samples: "Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation.""

His 90 seconds clip of the movie is the 100% of his video "creation" and is also a clearly "recognizable sample."

Finally "To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new."

It's really hard for him to claim fair use, knowing how fair use is judged in court practice. There's huge difference in our idea of fair and what's considered "fair use" in the current law practice, which makes precedence.

Example: a 30-second sample of footage from a movie is Fair Use in an educational or journalistic context; while a five-minute long sample is not, no matter the context. (Have you ever thought about why TV shows about movies only use tiny clips of the movie, even if the point would be much better made showing the full scene? It’s because they have no valid Fair Use defence to using clips that long, and so would have to pay for the rights — which they don’t want to do.)

Obviously, a YouTube upload of a movie substitutes for buying that movie.

Less obviously, but still overwhelmingly proven, a YouTube upload of “the Phantom Cut” substitutes for purchasing The Phantom Menace.

And here’s a specific precedent you can look up: RiffTrax were never legally allowed to distribute the (copyrighted) movies they dubbed over with comedic commentary, just because their derivative work was transformative. A work thus combined would still substitute for the original movie. When they did MST3K, that was all public-domain movies; and when they did RiffTrax records, those were like ROM IPS patches, not containing the original IP but instead intended to be combined with it by the end-user (“simultaneous play”.)

A LongPlay of a JRPG likely provides all the “game” that many people want when they buy a JRPG. As this is done using the copyrighted assets of the game (dialogue, etc), a LongPlay is legally a substitute for the game.

To be clear, that’s not the point here, as sampling is an easier-to-satisfy criterion than direct substitutability is. But substitutability is a useful model for understanding sampling.

If a remix or radio edit is a substitute for the original song, then a song that uses 30% of another song as samples, could be said to be 30% a substitute. (This isn’t actually why, but this is a useful intuition that allows you to predict the law.) So you still owe royalties.

Now: how is a video of a speed run, or a commentated Let’s Play of a game, different from one song sampling another song, in a way that is in itself different from the way that a LongPlay is a substitutable good for a game, taken through the lens of sampling one work to create a derivative work?

Nothing here strikes of transformative, or fair use. It is someone copying someone else's work. And this has nothing to do with commercial vs non commercial

> Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

They also score really low here:

> Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

Using the exact same clip can be fair use or copyright infringement based on what’s surrounding it. A long discussion of camera angles in movies using the clip is one thing, the clip by itself is very different.

So what? The profit driven nature is still a factor in whether or not something is fair use. Just because it's not make or break doesn't mean you can say "Nothing in "fair use" is about the new work making money or not." There's more nuance to it than that.

Now, onto the crux of your argument about implicit commentary. Even if a work does not contain explicit commentary, the juxtaposition of clips alone can function as a form of critique or commentary. This is especially relevant when highlighting inconsistencies or ironies in public discourse. While there isn't direct commentary, the act of selectively piecing together these clips communicates a larger point or message. Courts often look at the 'purpose and character' of the use, and if it is transformative—adding new meaning or context—it's generally favored under fair use.