Pokémon Co. Is Now DMCAing Years Old Videos Showing Pokémon Modded Into Other Games
from the DMCA-i-choose-you! dept
The war on video game mods that involve Pokémon continues! I can’t say for sure that the Pokémon Company’s renewed focus on taking down anything relating to these mods for 3rd party video games was kickstarted by the release of Palworld, sometimes pitched as “Pokémon with guns”, and a mod for the game that put actual Pokémon into the game, but it sure feels that way. Even before the game’s release, of course, the company has always acted as a jealous protector of anything related to its intellectual property, even as it has had no issues with using the work of others itself.
And now that renewed focus appears to be going to ridiculous lengths. YouTuber NoahJ456 noted on ExTwitter that a video of his featuring a Call of Duty mod that put Pokémon in the game seven years ago was recently DMCAd by The Pokémon Co.
NoahJ456, who has 5.21 million subscribers on YouTube, tweeted a warning to other content creators, advising that if their videos feature any sort of modded Pokémon content, “I would delete/unlist it ASAP.”
Tweeting a picture of the notice from YouTube, NoahJ456 said: “Just got a manual strike for a video I made seven years ago featuring Pokémon modded into COD Zombies. Two more strikes and my channel gets deleted.”
Now, as I am always willing to say, the company is within its rights here. It can issue these takedowns, given the use of Pokémon IP in these videos and mods. But as I also always say, the company doesn’t have to do this. There are all kinds of video game mods out there that have a lot of fun by injecting third-party characters and content into other games. And yet, despite the fact that all these mods exist without being taken down, the world still somehow manages to spin on its proper axle.
And I’m not the only one that thinks the Palworld mod is what set all of this off. Hell, even the creator of that mod, going by the handle Toasted Shoes, publicly stated that they felt responsible for this particular takedown.
“I didn’t think they’d go scorched earth and I certainly didn’t think it would lead to a chain reaction of them punishing @NoahJ456 and every other creator. I am truly sorry that me being reckless may have played some part.
“Crazy that it took a month to go after everyone else but it seems they now have their sights set on other creators.”
It sure does, which is a very shitty look for The Pokémon Co. These are fans of the company’s content that are looking to have a little fun within other games by injecting the Pokémon content they enjoy into them. This is the spread of fandom and culture at work and I can’t for the life of me even imagine how it represents any kind of threat to The Pokémon Co. or its bottom line.
But fun isn’t allowed if it is also a transgression on corporate control, it seems. What a lesson for youngsters out there when it comes to exactly what this company is all about.
Filed Under: copyright, dmca, mods, pokemon go
Companies: pokemon
Comments on “Pokémon Co. Is Now DMCAing Years Old Videos Showing Pokémon Modded Into Other Games”
And this is why copyright should last for five or ten years and after that it’s public domain. You had plenty of time to make money, it’s over now. Do something new.
Re:
IMO it should be 2 years. After that 2 year limit expires, you must demonstrate, beyond a reasonable doubt, that you still deserve the copyright. If that proof fails to meet the appropriate standards, you cannot go and claim copyright. Monopolies of any kind should have the shortest time limit possible, IMO, as to limit abuse of said monopoly.
Re: Re:
Copyright itself should just be abolished at that point
This doesn’t go far enough!
For every theft against the righteous job creators the evil satanic thief should be forced to behead their youngest nearest relative!
But seriously, fuck “technically not nintendo” and all this corporate bs.
TPCI has not been having a great time, what with the issues surrounding the Switch games. The Dexit controversy, the lackluster story of the 8th generation, and the absolute cascade of bugs and problems with how rushed Gen 9 had to be. Of course the devs are going to lash out at anything else they think is eating up their customer base’s attention. To them it’s money and eyeballs that could have gone to paying for 60 dollar DLCs, instead going to someone else’s IP that some kid modified to include Pokemon.
But you’re right in that this does nothing to hurt their bottom line. If a player wants to recapture the feeling of old graphics they’d play Pokemon Uranium or Pokemon Insurgence or Pokemon Emerald Rogue. They might have asked the mods to make those games later-gen friendly and include newer species. Which also suggests that they’ve already played the likes of Scarlet and Violet. In which case the devs have already made their money off those players anyway. Not that this would dissuade TPCI. If players are dumb enough to pay you for buggy games on release why the fuck would you not go after them for more money?
What’s the difference between the video in question, vs this very article talking about it?
Now, I haven’t seen the video, but did the video creator make the mod? If not, then why wouldn’t he be protected under fair use?
Re:
Right below where you quoted the article, it’s mentioned that someone else made the mod.
As for fair use, probably not. The video creator evidently makes a living as a Youtuber, so if this issue was actually handled in court, Pokémon Co’s lawyers would definitely argue commercial use.
In any case, it’s Youtube’s policy to nuke videos first and ask questions never.
Re: Re:
If the video included those mods as a commentary on the wholesome feel of the games, then that’s a fair use regardless of who actually made the mods, commercial use notwithstanding. Or are you suggesting the courts should ignore the precedent set by Campbell v. Acuff-Rose Music, Inc.?
Re: Re: Re:
For one thing, something being commentary doesn’t automatically give it fair use protection; it just increases the likelihood of it.
For another, that case was about parody, not commentary.
I’ve suggested nothing except that PokéCo’s lawyers would argue commercial use if this were to be litigated and that might do the trick. By the looks of NoahJ’s channel, it’s mostly just Let’s Plays.
Re: Re: Re:2
Incorrect. That case was about a parody which commented on the nature of the appropriated work, in accordance with the legal definition of parody. Do pay attention, 007!
Re: Re: Re: Precedent, but with a new limit
I’d argue that the Campbell precednt is at the very least limited by the recent SCOTUS precedent set by Andy Warhol Foundation v. Goldsmith. That case has upended fair use precedent as we knew it. In fact, I’ve seen recent fair use decisions that cite that for the first factor before or even instead of Campbell.
As I best understand this problematic decision, transformative use is determined by asking, “Why are you using it?” and not “What new meaning or message have you added?” In Campbell, Pretty Women was used as a parody to mock and criticize the song. It doesn’t matter what the critical commentary actually said, but rather the mere fact that it was used for criticism at all. In some cases, it’s a distinction without a difference, but in other cases, there is a difference. For example, consider the contrast with Andy Warhol Foundation, where the painting of Prince was “licensed to a magazine to depict Prince in an article about Prince.” It didn’t matter how different the aesthetic was, or the fact that there was a new meaning or message in Warhol’s work not found in Goldsmith’s photograph. That purpose, the court deemed, was not transformative and therefore favored a finding against fair use.
To be clear: I vehimentally disagree with the majority opinion in Andy Warhol Foundation v. Goldsmith, but unless and until Congress passes a change in copyright law to overturn this harmful precedent (which seems unlikely, given their current priorities), this decision remains the law of the land. Now, I haven’t seen the original video described in this article, so I can’t comment on how likely fair use would apply in this case. However, your suggestion that showcasing a Pokémon mod to comment on “the wholesome feel of the games” points to a transformative use of the mod, not Pokémon itself. As far as I can tell, the mod’s use of Pokémon points more towards a derivative work than a fair use, because as the SCOTUS has said in the Andy Warhol Foundation case, a new meaning or message must go beyond what is required for a derivative work for it to count as transformative within the meaning of fair use. That isn’t the case here, and so the mod itself and videos showing its use can constitute copyright infringement.
Re: Re: Re:2
So if I understand your argument correctly, depicting pokemon as zombies doesn’t make them look at all different to how they appear in the original games, and this is therefore not transformative in any way whatsoever. Oooookay.
Re: Re: Re:3
The argument often used by rightsholders is usually something along the lines of “You can recognize where the original came from, therefore it’s not transformative enough, therefore you violated IP law”.
You can absolutely disagree with this, and frankly, I think most reasonable people also disagree with it. The Pokemon Company isn’t owed money for what basically amounts to competently created fanfiction, for a game or mod that they themselves would not have dedicated man-hours to develop and require compensation for.
The problem is that courts still assume that the money supposedly “lost” by rightsholders to the void is still a non-zero amount, and thus do not look at modders and YouTube essayists favorably. It’ll probably take some more time before judges realize how dumb it is – until then, I fully expect the courts to get even dumber.
Pokémon Company's new catchphrase:
Instances of copyright infringement? Got to catch ’em all!!
Re:
If copyright infringement is prosecuted as a crime, (i.e. you wouldn’t steal a car) wouldn’t that mean that each specific act will end up with the offender being arrested but what they’ve made being preserved? If they face punishment for their acts, the debt has been paid and no one else has to face punishment at all, as no one has to bear the burden for someone else’s crimes? The self sacrifice of the thieves can win society new or remixed material that wouldn’t exist without their theft, and we’re all better served for it.
Re: Re:
Technically true, but I fear that’s also precisely the kind of rationale that enables and incentivizes copyright plaintiffs to demand harsher penalties for the sake of statutory damages and deterrence.
Nobody’s going to be able to put an actual damages number in a copyright case, and that’s kind of the point for copyright holders. They’re demanding monetary amounts that are entirely speculative for “lost sales” that don’t actually exist. When we use the cultural enrichment excuse to justify personal use and remixing, I think we have to be careful to not give copyright maximalists the opportunity to go, “Oh, so you’re saying that millions of people would have paid for this? That means I’m owed USD150 grand times how many million people you enriched, who could have paid me money!”
But by all means, please keep giving these fucking jackasses money.
Now, as I am always willing to say, the company is within its rights here. It can issue these takedowns, given the use of Pokémon IP in these videos and mods.
While true, platforms don’t need to be so nuts with their “strikes” when being DMCA-compliant. But yeah, scale and stuff and poorly drafted laws.