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.

Filed Under: copyright, fans, licensing, mario, mario royale, threats
Companies: nintendo

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  1. icon
    Stephen T. Stone (profile), 1 Jul 2019 @ 12:15pm

    I would love for Nintendo to legally approve the Mother 3 fan translation to the point where you could download the patched ROM itself. Alas, we live in the timeline where Nintendo has a Thwomp up its metaphorical ass about such things.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 1 Jul 2019 @ 12:16pm

    It would take a bit of work on Nintendo's part to sanction fan works in the same manner as Microsoft, but legal threats require work too. Why not have the legal team work on something constructive (guidelines, contracts) instead of something destructive (threats, lawsuits)?

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 1 Jul 2019 @ 12:28pm


    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.

    reply to this | link to this | view in thread ]

  4. icon
    James Burkhardt (profile), 1 Jul 2019 @ 12:38pm

    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.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 1 Jul 2019 @ 12:46pm


    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.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 1 Jul 2019 @ 1:20pm


    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.

    reply to this | link to this | view in thread ]

  7. icon
    James Burkhardt (profile), 1 Jul 2019 @ 2:19pm

    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?

    reply to this | link to this | view in thread ]

  8. icon
    That One Guy (profile), 1 Jul 2019 @ 2:49pm

    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.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 1 Jul 2019 @ 6:13pm

    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.

    reply to this | link to this | view in thread ]

  10. identicon
    Kookie Crisps, 2 Jul 2019 @ 8:16am

    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.

    reply to this | link to this | view in thread ]

  11. identicon
    Jen Erick, 2 Jul 2019 @ 3:38pm

    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!

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 4 Jul 2019 @ 10:36am

    gotta be cheaper than constantly threatening, filing against, and going to court against people with no money to take.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 8 Jul 2019 @ 4:06pm

    "Nintendo could and should do exactly this sort of thing."

    Why not just create a competing platform? Then you can show them instead of telling them.

    Their Company. Their property. The end.

    reply to this | link to this | view in thread ]

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