Nintendo's Lawyers Need To Chill

Here’s a taste of where we’re at in 2019: Every single time Kotaku writes about a fan game involving Nintendo characters, the first comments are never about the ambition or quality of the project. They’re about a fear of Nintendo’s lawyers.

It’s almost a meme at this point, so predictable and tragic has the process become. The world finds out about a cool fan game someone (or a team) has made, the world gets ready to enjoy it, Nintendo’s lawyers step in, they get it taken down, and we don’t end up getting to enjoy it after all. Generally, Nintendo doesn’t do anything about fan art, fan remixes of music, or other such projects. But for whatever reason, it draws a hard line at fan games.

It’s easy to blame these lawyers, as though they’re out for nothing else than to spoil our fun, but the reality is that they have a job to do. In their eyes, enforcing Nintendo’s copyright means enforcing it, because were Nintendo to get slack and start letting every little product and service use their characters without permission, then (or at least the legal theory goes) it gets harder to defend the company’s ownership of them should they need to take a bigger product or service to court.

An example of this stance is when Nintendo sued Maricar, the dress-up go-kart service that lets tourists drive Mario Kart-style vehicles around Tokyo while dressed like ersatz Mario characters, with their lawyers saying, “In order to protect our valuable intellectual property that we have built up over many years of effort, we will continue to take resolute measures in the future.”

By the letter of the law, all this is fine, but the letter of the law can and often does suck. It’s where the spirit of the law is concerned that Nintendo is letting itself down. The company needs to start making a better distinction between things that are trying to steal from them and make money, like Maricar, and things that are simply homages to their legacy. Like fan games.

It feels like Nintendo’s response, or at least its guidelines handed out to the legal attack dogs representing it, to fan games at the moment is almost algorithmic, so ruthless is it in hunting out and shutting down even the most innocuous projects.

I understand it’s hard for the company, given the scale involved. Nintendo’s popularity is in this case a double-edged sword, in that it’s great news when it comes to fan adoration and sales, but it also means the number of tribute games in development must dwarf those that other video game publishers would face. So policing what, from their perspective, would look like a tidal wave of potentially copyright-infringing video games must look overwhelming.

So if Nintendo ever wants to fix this - and who knows if it’ll ever bother, since it’s a policy that has been pursued for decades - it’s going to take some work, but there’s precedent from within the company.

Nintendo had, for a while, been making things difficult for fans on Youtube until the creation of the Creators Program, where anyone who wanted to cover Mario or Zelda or whatever games in a certain way was able to check in, get a set of rules to go by, and then be free to create. The program wasn’t perfect, and it has since been retired and replaced with a set of guidelines, but it was something.

It wouldn’t kill them to implement a similar program for fan games as well, even if they’re harder to keep track of, since YouTube’s a centralised platform and the world of fan games is a vast wilderness scattered around private forums and Discord servers.

Nintendo needs to read the room here and realise there’s a big difference between a pile of pirated 3DS cartridges at a market stall and a loving, non-commercial Pokémon game made by fans, for fans. These games are tribute, not competition.

Mario Battle Royale, the 100-player take on Super Mario Bros. that had to change its name last week to DMCA Royale in honour of Nintendo’s legal threats, was never going to cannabalise sales of Super Mario Maker 2.

Likewise, Breath of the NES, another recent and promising fan project that was turning Breath of the Wild into a retro top-down Zelda game, was never going to stop a Nintendo fan from preordering Link’s Awakening.

Maybe those higher up at Nintendo, or at least higher up in their legal departments, could do with seeing what Game Freak had to say about Pokémon fan games back in 2016 when we asked them about it at E3:

Despite the politics of intellectual property, the creators of Pokémon appreciate that some fans are learning about the process that makes the franchise possible in the first place.

“If I see that you are having fun creating things, or working on an art project... working on game development, we kind of share that feeling,” Masuda said.

But the most surprising thing about our exchange was when Masuda encouraged those fan game developers to join his team.

“In general terms, as creators we both have fun creating things, and at Game Freak we are always looking for skilled individuals, so please apply!” Masuda chuckled.

Better yet, Nintendo could take a look at what some of their biggest competitors are doing in the same space. For years now, a dedicated group of Halo fans have been building an all-new game called Installation 01. The project eventually attracted the attention of Microsoft, and do you know what Microsoft did?

They didn’t send in the lawyers. They didn’t get the game shut down. They met with Installation 01's creators and worked out a deal. So long as the fan game is released free of charge and displays this text:

Installation 01 is a completely separate entity from 343 Industries and Microsoft Studios and neither 343 Industries nor Microsoft Studios is formally funding or partnering with this project.

Then they’d be allowed to keep on developing it, and then releasing it into the wild. That’s it! Super easy for the creators to implement, and more importantly super respectful on the part of Microsoft, who aren’t ignoring their copyright responsibilities, but found a simple legal way to differentiate a fan project from their official works.

As I’ve said, improving their relations with and respect for fan projects would take a little work on the part of Nintendo, but it would surely be worth it, if only for the increased goodwill from its fans over what’s becoming a tiring occurrence.

Then we could look forward to a future where we get to talk about these exciting fan projects on their merits, and actually enjoy them at release, instead of simply worrying about how long it’s going to be before they’re shut down.


Comments

    I applaud the ambition and quality of this article. However, you should refrain from mentioning Nintendo or any of their IP directly in order to avoid any potential lawsuits.

      They Who Shall Not Be Named (...Sun and Moon edition).

    This article... "Nintendo's lawyers need to stop."

    Next article... "Hey everyone, did you know there's this cool fan made project based on a Nintendo game? Here are all the details anyone might need about it... To play it or have their lawyers take it down."

    One of those unfortunate double edged swords.

    Nintendo or any other company has a right to protect their intellectual property. You can make a fan game that's a great homage to a franchise and not actually use IP that doesn't belong to you.

    And let's not pretend for a moment that Nintendo is the only company to do this. I guess they are most infamous for it, and are one of the most consistent with it, but others such as Disney, Warner Bros, Hasbro, Square Enix, Konami, LucasArts and even Sega (despite recently releasing a new Sonic game made up of fan-made levels) have all done it in the past and continue to do it. Sega's actually been especially diskish cause apparently they were contacted to get their okay about a Streets of Rage remake and they gave their blessing, only to turn around and throw a C&D at the creators when the game was actually finished.

    Part of me does feel for these fan projects that get shut down, but they know what they are getting into before they even start it. They know there's a very high chance they'll be hit with a DMCA or C&D notice the moment the owners of the IP catch wind of it. Some companies like Microsoft seem to be a little more relaxed about it under some circumstances, but they are the exception rather than the rule.

    At the end of the day, you're using someone else's intellectual property without their permission and *you can't do that*.

      There’s absolutely no way that people aren’t aware that they’ll get DMCA the vast majority of the time. Some of them blatantly do it and state they know it’ll be taken down but get someone’s attention so they can get an easy in to a game dev job ( since we’ve seen countless Kotaku articles about how ‘cushy’ the jobs in game Dev land are /s )

      Personally, I think they should show some actual creativity and create their own IP to make games of, or use one of the IP where fan games are allowed, such as Touhou that has games covering a huge variety of genres.

      Yeah I don't think this article is really making a great case, there is no "spirit of the law" in these cases. be it in protecting or losing your IP's.

      The comment from Game Freak isn't as supportive of the argument as Luke seems to be implying, it reads more like, "We are flattered that people want to emulate our stuff but if you want to make Pokemon, come work for us"

      I don't think he's representing the MS/Installation01 example very well either.
      The first thing that sets it aside from the kinds of fan games Luke is talking about is the developers of Installation01 approached MS directly with their intentions, they didn't just make the game and put it in the net.
      Second it would seem that not making any money from the project isn't the entire story but the devs aren't willing to actually detail what the full terms are, though they are quick to point out that theirs is a unique project working under conditions that no one else can expect so I imagine that MS has been careful to create a situation where this game can't be used as a means to erode their IP which automatically makes it a rather irresponsible example to compare to games that actually can.
      That brings me to a third point in that MS has created an exemption protected not only by unknown deals but within the systems of business and law in which they have already have strong influence and home ground advantage, they would find it a lot easier to protect themselves than Nintendo and other foreign entities would.

    If people were playing the free fan games why would they buy the re-re-re-re-release of one of the official games?

      Pretty sure this is why MMO closures always resist any form of fan-run revivals in the form of private servers. No, they're not going to make any money off the game they've just decided to kill forever bury under crossroads with a stake in it, but they ARE hoping that at least part of the audience of the game they just killed will instead move to their exciting new investment. They don't want to be competing with something they made but aren't profiting from.

      It is, fundamentally, evil, in the D&D definition where fucking other people over for selfish reasons is considered 'evil'.

        you're right, but in all seriousness the venn diagram of people who play fan games and people who rush out and buy the new release of the official game straight away is probably just a circle.

          True but that makes the need to protect it even more important.

    People just need to put it out there before going "We are almost finished this fan game with infringing IP".

    The thing that gets me is all these fan projects act oblivious of what is going to happen. If the IP is protected making a fan game is a very bad idea cause they dont protect themselves from DMCA.

    Instead of making a fan game using their copyrighted material... make a game that plays exactly the same with your own assets.

    Then Day 1 when you release it on steam, put a Workshop mod with your Mario skin and sound files.

    I have a arcade flight sim on Steam where I have every gundam, anime, scifi ship model installed... I shot down Tie Fighters with a Star Fox fighter.

    Mods are a marvelous grey market thats less DMCA heavy... and even if they ban the mod, your game remains

    Kotaku ads need to chill. How bout that Plunkett?

      Is it me or have they gotten far worse in the last week, at least on mobile? I’ve now got video playing ads at the top and bottom of the scroll.

        I don't go onto Kotaku unless ad block is enabled. Too many ads and it slows my system down something shocking.

    We call it the "Kotaku Curse" for a reason guys

    Nintendo needs to strongly protect its IP otherwise when they end up taking someone to court the defence lawyer cant point to them not protecting their IP and win a lawsuit against them.

    Its Nintendo's IP, Not yours. Just because you are a fan does not mean you get to use copyrighted works. Nintendo has invested billions in making these copyrighted works what they are. You have not.

    Even though this could be traced back to Pokemon Uranium and AM2R. I think it was actually Pokemon Prism's cease and desist that truly wokethe world to Nintendo's Disney style copyright enforcement and created this infamous atmosphere about the company and fan games.

    It was in the works for 8 years, was only a few days from release and then it got shut down. True it survived through pirates, but the version that the original creator wanted to release is gone forever and ultimately got callously rejected by Nintendo. And things have been like this ever since.

    That day had a powerful blow to the online community when that cease and desist letter got released to the Public.

    I would also like to point out that all the comments here aren't being neutral about this issue. They're biased towards the current copyright law. And because of this. The law will never be updated ever again except for extending the copyright extension part again when the times comes.

    Not to mention there are already hundreds of fan games out there. So saying that Nintendo needs to protect its ip or they'll lose it. Is hypocritical when a lot of these fn projects that have been noticed and "stopped by them" are still playable to its day.

    It doesn't matter if they invested Billions into creating these works. Once it's out there. It's out there and your control of it has already been compromised.

    It is then "Nature" of the internet and how tech works.

    Stop saying what has already been repeated by those with legal authority. They are only advocating what is current. This article is trying to advocate proper progression so that its possible to do these fan games without compromising Nintendo's ability to protect these IP.

    These comments currently reflect the attitude towards these things show no sign of thinking for themselves and will turn the community poisonous and will lose lack of innovation.

    So if I attempt to release 'Exceptional Giuseppe Cousins', I might be pushing my luck?

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