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Despite the certainty of takedowns, fan developers still pursue Nintendo’s works

It might be time to set down guidelines, argues copyright lawyer

WinterDrake via Youtube
Owen S. Good is a longtime veteran of video games writing, well known for his coverage of sports and racing games.

As soon as the first screenshot of it was shared, it seemed like "Breath of the NES" was doomed.

Made by WinterDrake, the nom de plume of a 20-year-old college student in Massachusetts, the game approximates a prototype shown at Game Developers Conference 2017 by Nintendo designers. They had begun work on this year’s The Legend of Zelda: Breath of the Wild with a 2D mockup that more resembled the original game in the series from 1987. Lots of people thought it was a cool and wanted to play it. WinterDrake did, too, so he set about to creating that.

It didn't matter that the demo WinterDrake cobbled together wasn't being sold for money. The DMCA, the C&D, the alphabet soup of legalese was sure to follow, shutting down yet another fan-made game as soon as it came into range of the heaviest hand in video gaming intellectual property.

"Hit by a Nintendo cease and desist letter in 3 ... 2 ... 1 ..." said one commenter on Polygon.

"Posting about it is a good way to bring about the doom hammer," said another on Kotaku.

"Just fucking ... don't announce it beforehand if you don't want the IP holders coming down on you like a ton of bricks," warned one Redditor, after the game was taken down on a demand from a Nintendo lawyer. "Because that's what happens every single time. But once it's released onto the Internet, no amount of DMCAs will stop people from finding it. So just don't publicly announce that you're making a fan game."

Fan-made games, and copyright owners putting an end them before they're completed, are not a new trend. If anything, the persistence of fan works despite repeated takedown actions — Nintendo went after 500 on a single day back in September — demonstrates that making and sharing them is a significant component of video gaming's fan culture, whether publishers like it or not.

"Pretty much as soon as I started posting screenshots of the engine to Reddit, people immediately started warning me about Nintendo's streak of shutting down fan games," WinterDrake said to Polygon. He still intends to push on with the work, using different assets and excising any reference to The Legend of Zelda.

High-profile shutdowns seem to be no deterrent

But the recent cases of "Breath of the NES," and another popular effort to bring Red Dead Redemption's map into Grand Theft Auto 5, leave many wondering why fan developers would show off incomplete work if they really were serious about finishing a game. Still, makers of "fan games" seem resigned to the the loss of their work even as they practically invite it with trailers and screenshots that resemble the marketing of a newly announced product and catch the eye of mainstream games media.

Last year, a fan-made game based on the canceled Star Wars: Battlefront 3 announced it would come to Steam well before even an alpha version was in place. Electronic Arts, the current exclusive license holder to make Star Wars games on console and PC (including Battlefront 2, coming this year) complained to Lucasfilm and Disney, and now that must go forward as a generic space shooter eschewing all Star Wars references and assets.

The layperson's advice, in forums and comments, is to wait until everything is done and then share it, in true guerrilla artist style, knowing that fans will torrent and mirror the files themselves. But is that really workable?

WinterDrake doesn't think so, and it's not because he can't keep a secret.

"I could have spent months building the game without advertising it, and then release it publicly," he said. "However, this would mean I wouldn't have gotten any player feedback before release, and frankly, without the feedback and attention, I wouldn't have had the motivation to continue on."

And the feedback wasn't just praise, WinterDrake said. Fans reminded him that when Link acquires a new heart in The Legend of Zelda, all of his existing health is refilled. If he'd dumped a completed work, by surprise, without that basic gameplay trait, fans would have been disappointed rather than thrilled.

"When I first started making the demo, my only thought was filling a hole of demand that people wanted," he said. "In the Breath of the Wild 'making of' videos, they showed off the 2D prototype, and all of the comments were, 'I wish I could play that.' People wanted something, and I had the ability to make that something. So, I did."

Some publishers seem to recognize the inevitability that people will act, and have set guidelines and policies on fan-created content, whether it involves, artwork, mods of existing works or ground-up fan games. Stephen McArthur, the Los Angeles-based "video game lawyer" whose practice has advised games publishers on modding and fan-use policies, notes that major publishers such as Riot Games and Bethesda Softworks have rules about fan-created content that reference or incorporates their intellectual properties.

In 2011, Blizzard Entertainment — which has taken hard lines on infringing works — took a more tolerant approach with a modder who created a “World of StarCraft MMO.” It got the mod maker an invitation from Riot Games to apply for a job, the secret hope of many fan developers. Ultimately the mod launched on

Don't break the rules and they won't come after you, is the implication, even though every policy still reserves a right to shut something down in unforeseen or unspecified cases, or for any reason. Still, such rules have to exist, and McArthur thinks it’s good business for publishers with huge fan followings to adopt them.

"It is legally unnecessary and also a terrible business and marketing policy for game companies to shut down all fan-made projects celebrating their IP," McArthur says.

Yet there are a couple of important distinctions in the most recent actions against "Red Dead Redemption V" and "Breath of the NES.” Both involve works that have no presence on PC, where modding culture is stronger, mod support is often a core feature expectation.

Red Dead Redemption V sunset .White Team

Anything that cracks a game raises a big red flag

"Red Dead Redemption V" sought to bring assets from the Xbox 360 version of the game into the Grand Theft Auto 5 engine on PC. Red Dead Redemption itself has never launched on PC, which was a big part of the mod's appeal. But that kind of manipulation, of software published for a closed system, is probably what caught the attention of Rockstar's lawyers, more than any concern over the modders' trademark use or brand confusion.

McArthur says anything that looks like “cracking" a game is a deal-breaker even if a publisher has articulated fan-use guidelines. Anything that could be considered a hack or a cheat is going to find trouble.

His advice to mod-makers and fan-game designers: Keep it non-commercial, giving the work away for free. Do not use any of the company's logos or music, and make it clear that the work is non-official and not sponsored or endorsed by the publisher.

Then, "Keep it clean; nothing controversial, racist, sexist or otherwise offensive." In case that wasn't clear enough, "Do not damage their brand or company."

Interestingly, that last point was referenced about seven years ago by the late Satoru Iwata, then Nintendo's president. Iwata, responding to a shareholder question at the company's 2010 annual meeting, seemed open to adopting guidelines for fan creations, recognizing the intense and often personal attachment so many have to Nintendo’s games and characters.

Iwata made three key points: The first is that the company cannot give its tacit approval to any and all activities "which threaten our intellectual properties." No. 2: "It would not be appropriate if we treated people who did something based on affection for Nintendo as criminals."

And third, "We think one of the criteria for deciding how to respond is whether the expression in question socially diminishes the dignity or value of our intellectual properties or not."

pokemon uranium Pokémon Uranium

Yet since then, Nintendo has struck down just about anything rising to widespread public attention. “Pokémon Uranium,” a fan-made, full-length Pokémon adventure with a nine-year development cycle, launched in August 2016 and tried to lurk underground. It drew Nintendo’s attention one week after a highly publicized launch, and development was terminated a month later. "Another Metroid 2 Remake” was also taken down last year, a week after launch, after Nintendo sent demands to multiple file hosting sites. And a mashup of No Man’s Sky with Super Mario Bros. got the kibosh — not from Hello Games (No Man’s Sky’s maker) but Nintendo. In 2015, a fan-made remake of Super Mario 64’s Bob-omb Battlefield Stage, in the Unity Engine, was also removed after catching Nintendo’s attention.

In all of these cases, Nintendo has given statements about respecting other creators’ rights to their work, and expecting the same in return, and its obligations to defend its work. The company has a perfect right to take the actions it has. But even the comprehensive and vigilant actions taken against fan works haven’t dissuaded others from trying the same things. McArthur thinks it would be worthwhile for Nintendo to write out guidelines, as Riot, Bethesda and others have.

“It’s not a whole lot of extra work, and it makes it easier to enforce,” McArthur reasoned. “It’s ‘Look, we’re giving you guidelines. We’re not being mean. It can also make it easier to enforce, and get less of a community backlash.”

WinterDrake noted that Sega, Nintendo’s partner in 1990s gaming nostalgia, has a more tolerant posture toward fan games. “It allows fans to offer their own take on beloved franchises, and if anything, benefits the company,” he argued. “I’m not sure why Nintendo has such a different policy.”

Sega’s Genesis & Mega Drive Classics Hub on Steam, and Steam Workshop support support allowing custom ROMs and mods to be shared, is a bold contrast to Nintendo’s approach. WinterDrake also noted the upcoming Sonic Mania’s development origins in the work of Christian Whitehead, the developer behind the fan game Sonic Retro.

Putting in place a policy for fan-adapted work also removes the commonly cited consequence that not challenging or taking down unauthorized work forfeits one’s rights to what they’ve created. “I think that is a little overstated, and used an excuse,” McArthur said. “This is fan-made content that refers to your work, that’s a correct use.” He argued that rights holders are asserting a last line of defense that is more appropriately used against those who really are trying to make money off established copyrights or trademarks, or the confusion of them.

“There is the worry out there,” McArthur acknowledged, that a creative company must vigorously defend its marks. “But at the same time, for fan-made content, there’s actually less of a risk for that, because they’re not competitors. There’s not a lot of risk if you have a policy and fans follow the policy, and those who don’t are sanctioned.”

Whether Nintendo adopts such a policy or not, the repeated takedowns of fan works seem to have no proactive effect. If anything, Nintendo’s wide appeal, and its traditions in the more easily-modded 8-bit gaming era, make it an ongoing target. All that has changed now is developers and modders figure they’ll be caught and, like WinterDrake, have plans for when they are.

“I was obviously a little sad when I received the DMCA, but I knew it was coming, so the blow was lessened. Nintendo's games have fantastic characters and an unprecedented level of polish,” he said. “and I'll always love them for that.

“Not a huge fan of their legal department, though,” he added.

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