In the last couple
of weeks Nintendo Fans were treated to some disappointing news. It's
well known that Nintendo is extremely protective towards their
intellectual property, but the shutdown of Pokemon Uranium and the
Metroid 2 Remake was still quite shocking for many fans. It's a fact
that Nintendo has a, let's say, strained relationship with fanworks.
This is not a simple topic and it needs to be talked about from
several viewpoints, which is exactly what I will try to do. For the
record I'm all for Fanworks and I think that Nintendo should try
their best to make it possible for Fans to express their creativity.
However I also can see why Nintendo is so protective of their IPs.
But no matter what my stance on this subject is, let us first try to
look at it from both angles. And as a word of warning, I'm not a
lawyer or law expert in any case, but let's start for now. Oh and I'm
also focusing on the US in this case, because that is where the most
recent takedowns took place.
Nintendo needs to take down Fanworks
Nintendo is very
protective of their Intellectual Property. And they should be. After
all they own some of the most recognizable characters, no only in
gaming, but in general. Their creations have shaped peoples childhood
and inspire them. So from the perspective of their creators Fanworks
are a labor of love. A way to show the world how deep their
connection is to these characters. They (most of the time) do it for
free and with the simple goal of sharing their passion with other
likeminded people.
Then why is
Nintendo going down so hard on these projects? Isn't there something
called Fair Use? Well the Fair Use doesn't really apply in this case.
You see Fair Use, in its most general sense, is the copying of
coyprighted material done for a limited and ''transformative''
purpose. There have been countless debates over what is
transformative, but for this text they are not of importance because
Fair Use isn't the topic here. As harsh as it may be, but Fanworks,
especially remakes and fan games, don't fall under the Fair Use
clause. Or at least it's up to debate and you'll probably have to go
to court over it. While these works are most certainly
transformative, they are in now way limited. And they are Video
Games. I think that is the main problem.
You see Nintendo
is making Video Games, so if they allow other people to create video
games with their characters, and don't act upon it, this could be
seen by courts as a failure to protect their Intellectual Property.
And this could then serve as a precedent in further cases leading to
Nintendo losing the rights to their own Characters. That is the fear
behind all those DMCA strikes and takedown notices. As an owner you
need to make an active effort to protect your Intellectual Properties
or you'll lose them.
From this
perspective Nintendos actions do make sense. Even if the games are
free. The fact that they are games makes them a potential threat.
Even if the chance of the described scenario happening is miniscule,
Nintendo isn't willing to risk anything. A company tradition that is
also evident in their game design, but I digress.
Now that we
elaborated on Nintendos position let us take a look at the other side
of the fence.
Nintendo needs Fanworks
It is a fact that
Mario and Co. are some of the most treasured franchises in history.
It is also a fact that Nintendo Fans are among the more passionate
out there. So it is only natural that Nintendo should capitalize on
that fact. They should endorse those projects. Some of you may say
that these Fan Games and especially the modernized remakes of older
Nintendo titles cut into the Profits Big N makes via the Virtual
Console. This is true, but on the other hand these projects also
serve as free marketing. Done right this could be used to funnel
potential customers towards the actual games.
Fans can even
become integral to the experience of certain games. Just think of
Bethesda titles without the Modding community. Or the Super Mario
Maker community, which probably would have never gotten so big if not
for the guys coming over from Kaizo Mario. The Story about someone
beating the Pit of Panga: P-Break level for the first time even
managed to hit some mainstream news sources. Looking at this level of
exposure it's stupid not to capitalize on those loyal fans.
Nintendo still is
trapped in their old fashioned ways. And while they often secured the
survival of the company they need to realize when it is time to
modernize. The Internet never forgets. Even if the original creators
of fanworks remove them from their websites, there are thousand more
were you can get the game. Instead of fighting a fire with a wet
towel (and Nintendos fight against the Internet is nothing more) they
should try to help these creators.
Like I said at the
start of this article I'm no lawyer or expert in that field, but I'm
sure an actual expert could find a way for Nintendo to keep their
copyright claims, while allowing Fan works to exist. In the end it's
just a question of will.
If Nintendo one
day comes to the same conclusion remains to be seen, but for now they
seem intent on continuing this battle. Even if it's one that neither
side can win.
What is your
stance on this whole topic? Let me know in the comments.
Oh and if you want to know more about the two Fan Games I mentioned in this post you can inform yourself right here:
And as always
thanks for reading
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