Dear Nintendo: Here Are Some Ways You Could Be A Little More Cool, Man

from the take-a-breath dept

We were just talking through yet another instance showing that Nintendo hates its own fans, in this case regarding a story about a cool fan-made web game that was essentially a 2D Mario Bros. battle royale game. In that post, I mentioned that Nintendo’s lawyerly ways have become so infamously legendary as this point to be the punchline to every announcement for a fan-game that in any way involves Nintendo properties. The battle royale game is obviously not alone in this. And, given the many other options at its disposal, it remains something of a mystery why Nintendo continues to insist on playing the jerk at every turn.

And I’m not the only one wondering, it seems, as Kotaku has picked this theme up and written a decent post asking why Nintendo acts this way as well.

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 cannabalize 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.

This paragraph does a decent job of pointing out what should be obvious to Nintendo: fan-games are not a threat. Instead, fan-games are the expression of fandom and nothing more. If anything, fan-games only enhance the market for a gaming company.

But, wait, you say, doesn’t a company like Nintendo have to enforce its IP rights or lose them? Kinda-sorta, and Kotaku makes this same overly simplistic mistake.

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.

I can’t be certain, but this reads like someone that is confusing copyright and trademark law. In trademark law, there is a requirement that the holder enforce their trademark when the potential for infringement or confusion exists. If they do not, they risk allowing their mark to become generic. In copyright law, the rightsholder has more options. It is true that the failure to protect a copyright does risk interpretation in future litigation of an implied license being offered, but it’s far less black and white compared with trademark law. In addition, rightsholders like Nintendo have tons of options to officially sanction and cheaply, or even freely, license a work so as not to risk an implied license.

To its credit, Kotaku makes this point.

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 ofHalo 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.”

Nintendo could and should do exactly this sort of thing. It would take a bit of work, of course, but the boon in allowing the fan community to thrive and create works of love alongside Nintendo properties has to far outweigh whatever that extra workload would be. At the very least, it would keep writers like me from pointing out to the gaming public that Nintendo hates them whenever I can. It would build a more enduring relationship with fans, it would make for a great PR story, and it would allow for an explosion in Nintendo branding to flood gaming fandom. All of these would represent good business developments for Nintendo.

If only it would try to stifle every Nintendo-y instinct it has and try to be just a bit more human and awesome to its fans. Oh well.

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Comments on “Dear Nintendo: Here Are Some Ways You Could Be A Little More Cool, Man”

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Anonymous Coward says:


I don’t know if there’s any irony to the fact that some game studios like Retro, Ninja, Platinum games which are technically companies have employees that are "fans" of Nintendo and there could be a small argument that when Nintendo gives them the rights to make a game…are made by fans. It’s just the fans are official employees which makes it ok…I mean legal.

James Burkhardt (profile) says:

The reason Nintendo won’t adopt a positive approach to fan works is simple. They retain the culture of a toy company, not a media content company.

Nintendo releases content as though it were a toy company, and the fact that Nintendo consoles always seem to be out of stock is the evidence of this. Meeting demand isn’t their goal. Having the must have toy or game that is sold out everywhere is what they want. Its why they never produce enough Amiibo in a run, why there was only one insufficient planned run for the NES Classic. Its why they don’t fully leverage their back catalog and make a nexflix for Nintendo games, instead only paying lip service to the concept. Its why they sold out of 3ds consoles every Christmas, without any more stock to ship out. Nintendo wants to be the company with that hype and demand behind their toy, and they will manipulate supply to get it.

Fan works disrupt that exclusive supply aura. Anything that uses a Nintendo IP needs to feed into this self aggrandizing pipeline to build that hype as part of Nintendo’s carefully coordinated marketing strategy. Fan works don’t do that.

Anonymous Coward says:

Re: Re:

Except That after Mario royale was changed to DMCA royale it was no longer using their IP. It was simply a game where you run and dodge things on platforms to make it to the end first before 74 other people get there. Hardly an original concept created by Nintendo. Yet they still threatened the creator with a possible lawsuit.

I really wish the creator had the funds and ability to stand up to Nintendo. But alas we will need to wait for someone else to show up and tell the corporate troll that they don’t own the concept of jumping on platforms and objects while racing other players.

James Burkhardt (profile) says:

Re: Re: Re:

DMCA also wasn’t really a fan work at that point either. The rationale changes. My surface analysis hadn’t addressed the salt the earth strategy. Its retaliatory. This isn’t the first time that a company has kept suing after a creator followed the letter of a cease and desist without following the senders intent. Companies who need to control their IP in this fashion are fully willing to salt the earth after nuking it from orbit to ensure that the fan work never exists in any form. In Nintendo’s case, Everyone who knew about DMCA Royale would think of Mario Royale, for a while at least. It would divert attention from the carefully crafted media pipeline.

Its like that court who denied mechanical licenses to Aereo after the SCOTUS ruling: Didn’t you get told to go off and die?

SPerson223344 (profile) says:

Re: Re:

The fact here is, the toy company culture no longer works in this age of the internet.

Remember that Nintendo has failed to properly follow trends before in the game industry. You can take a look at Nintendo’s mid-to-late 90s gaming console history for the proof. When Nintendo released the Nintendo 64, they overlooked at one thing, which was the storage format. Whilst they outsmarted out Sega with their development libraries, their storage format cost them dearly after Sony entered the market with both good development libraries and using CDs as a storage medium with the Playstation. Nintendo’s attempt at VR/steroscopic 3D in the 80s and the 90s also failed badly due to severe health issues associated with them. They later chose CDs as their storage medium after realizing their mistake.

Their online services of their consoles also was known for being pretty shitty. You can look at the Nintendo DSi’s online services for that. Their Nintendo Switch Online service was known for being pretty shit-tier at the time of its launch, as compared to competing consoles’ online services. The only advantage was that you paid far less for it.

Another thing that Nintendo doesn’t realize when being over-aggressive over fan works is that the west spend more time in internet for much more longer than Japan. They just assume that the west also spends the same amount of time on the internet like Japan. Hell, their lawyers assume that western copyright law is like Japan’s one! Nintendo doesn’t even look at the fact that the internet works very differently.

They basically think that the fan works will kill their profits. They don’t take the option of monetizing out the fan works. It’s hurting their reputation. Sega at least tried to keep whatever good reputation they had left by letting fans port their Sega Genesis Sonic titles.

Stuff sold that were made with physical material is bound to run out of stock at some point. Toys fall on the physical works side. Purely digital works, however, cannot run out of stock because there’s no physical material involved.

Anonymous Coward says:


If your game is fun, why would you need to use someone else’s character designs? Too unskilled or lazy to design your own, or just looking for the attention? Clearly the latter. Because “fan games” are BS.

Mario isn’t real. People aren’t fans of Mario, they are fans of Mario games. The Mario name carries a certain cachet because there is an expectation of quality. Putting Mario into a “fan game” does not magically bring anything with it except brand recognition. It’s a cop out.

You wanna say Nintendo is full of shortsighted crap for shutting down streamer videos or for not opening a ROM store and providing true virtual console clients on their hardware then I’m right with you. But this, no can do. It’s be like me recording a Beatles song I wrote.

That One Guy (profile) says:

Re: Can't tell if poe or serious(ly confused)...

People use what came before, and/or remix what’s already out there, because they enjoy what’s already there and want to create something with it for others to enjoy.

Taking what already exists and twisting it into something new(ish) is how culture works, now and historically, such that if you want to claim that unless something is made completely isolated from anything else it’s not real creativity then good luck finding anything to fit that definition.

Anonymous Coward says:

A mobile game I play recently ran an ad for Chinese bootleg Pokemon, using graphics and assets from the 4th and 5th series of games, promising to relive the Heart Gold/Soul Silver experience – with the addition of spending money on owning a skyscraper.

Chinese bootleg "remakes" are dime-a-fucking-dozen. Considering that Pokemon was only officially allowed in China during the 3DS era, Nintendo could easily make the argument that lazy reprints of their games, using the same overused Chinese game engines, are taking away thousands of dollars in disposable income from players who honestly don’t know any better to NOT throw huge wads of cash at reskinned games.

But naw, all Nintendo can do is keep chasing non-competing fan projects that don’t make a single cent because they’re so much easier to bully into submission.

Kookie Crisps (profile) says:

Other example of good Copyright handling is Black Mesa.

Black Mesa is a reboot of Half-Life and fan made. Fans created their own company, AFAIK, so they could have the deal. Valve and Gearbox are not associated on the project et. al.

Anyway, Nintendo has histerically (pun intended) been mishandling this.

That’s why the last console I bought from Nintento was the Wii.

Jen Erick says:

Kinda-sorta, before you knew it, hello new order!

Yo yo y’all. Nintendo uber astroturfing this copypatentmark is a dumpster of a bandaid solution that is done tannoy everyone by hoovering up every last crumb of fan creativity. It’s yet another comic con played out on fans. Good thing I googled the code and put in on my memory stick. Time to blow this popsicle stand. Life out, fam!

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