Fan Games Are No Less Protected Than Fan Art By IP Laws

Or: It’s Time To Stop Defending Nintendo Unless You Hate Fan Art Too.

(This article is available in an expanded, podcast-style form as well, on YouTube.)

A common refrain when a fan game is taken down is that it’s within Nintendo’s rights. Do you know what else is within Nintendo’s rights? Sending DMCA takedowns to every single OC Remix track based directly on Nintendo’s music. What else is within Nintendo’s Legal Rights That Are Totally Always Okay To Enforce?

Say Nintendo read every article about Cosplay and sent a DMCA notice to have the pictures taken down and demanded that the cosplayer never again display or create a costume based on a Nintendo character. Is that cool with you? Because it’s not actually any different than fan games, legally speaking.

How about Nintendo sends DMCAs to the millions of pieces of Nintendo character fan art spread across Deviant Art, Pixiv, Twitter, Tumblr, everywhere? Because they could do that. Legally.

Remixes, fan art and yes, even cosplay are derivative works. The only legal difference between them and fan games is that corporations don’t go after them.

(Internationality warning: This article is largely discussing Nintendo of America’s actions regarding the internet, so North American IP law is what’s in question as it’s by far the most relevant. Local laws may vary, but are likely irrlevant to the cause at hand. Also, most of what I state really should be common knowledge of IP law at this point. It’s kind of sad how rare that knowledge seems to be lately.)

Games Aren’t Art, Part 4563

Why are Fan Games treated differently then? Sigh.

I never thought I’d still be having this insufferable, festering pustule of a conversation in 2016, but we still have a problem considering games art, and few things show it so well as how poorly we treat fan games. We consider fan games lesser because our opinion of games is that they’re these weird, hyper-corporate things that can only be commercial products or, at the very least, that they’re less “arty” than other art forms.

What is the legal difference between fan art, remixes and fan games? Nothing. Absolutely NOTHING. There is NO legal wording specifically describing a type of art that is okay and not okay to derive works from.

Law doesn’t define what is and isn’t art; this shouldn’t surprise you. So “but it’s a fan game” is a completely meaningless argument. Nintendo has no more or less legal ability to DMCA fan games than they do the aforementioned fan art or fan remixes. If it’s an unauthorized derivative work it can be taken down with a DMCA no question, and no, your favorite artist on Deviant Art did not get authorized to draw that picture by Nintendo, so they’re in the same position as DoctorM64.

Yet somehow I bet you’d be slightly more angry if Nintendo took down every single fan remix and picture like they are currently doing with fan games. Did you know Nintendo took down over 500 games just a couple days ago? Just imagine that, except it’s Deviant Art, and it’s about 500,000 works instead of 500. There would be a massive public outcry. Which is what should be happening with that 500 fan games, because as I’ve explained, they’re largely the same situation.

But there isn’t, because we consider games something different, less valuable, more questionable, more commercial. Ignoring that all art has been commercial as hell for as long as it’s been around. Do you know how many paintings hanging in art galleries were either commissioned by the extremely rich or at the very least made specifically for payment? And that’s ignoring that basically zero out of none fan games are actually sold; just today some random on twitter explained to me that a totally free game was a “product” so it was okay to take down.

Games are art is a dead discussion because there is no formal definition of what media are and are not art, and the discussion is even more dead in terms of IP law where there are no such distinctions. If you support taking down fan games you support taking down fan art as well, full stop. If that doesn’t sit well with you, maybe it’s time to rethink your position.

But Is It Even Legal?

Let’s step back for one second to remind ourselves that the most common assurance that Nintendo is right to do this isn’t even necessarily the case.

Here’s the thing about Fair Use. Fair Use is only truly protected by corporations being so ashamed and afraid of starting a case so obviously not in their favor that they never touch it. It’s a bad look, and sadly a lot of the public’s ability to influence corporate decisions is through complaints and saying they suck on Twitter instead of legal action.

Fair Use is a defense that tends to have to be made in court, which is part of an IP law agenda designed specifically to screw the little guy. Somewhat like Terms of Service, just because companies are saying it’s their right does not mean it would hold up in court. In fact, probably every software TOS out there right now contains terms that are almost certainly illegal, but that’s another article.

In reality, many of these cases could stand up to Fair Use; derivative but providing their own artistic or educational value, not having significant impact or replacing the commercial value of the original work, being primarily for criticism or education. Note that not all of those are essential qualities of Fair Use, but more of a rough measure. Even in court Fair Use is a bit squishy, too much so in the internet age.

So, no, it’s not necessarily in their rights. We just give multinational billion dollar publicly traded corporations the benefit of the doubt because they’re just swell individuals who would never do public harm to benefit themselves, right? Just like oil companies, cable companies and the manufacturing industry.

Expecting Better Than Evil From Nintendo

Even if we assume it’s true, the argument that Nintendo is within their legal rights so it’s totes McGotes Okey-Dokey is very similar to claiming Free Speech when someone places a KKK sign and burning cross in their front yard. Technically it’s probably legal depending on hate speech laws in your local area. Hateful speech that can’t be interpreted as a direct threat is often harder to persecute than a direct threat. (This is why companies like Twitter usually ask if harassment is targeted harassment.) Does that mean you’re not a complete asshole for putting that in your yard? No. Does that mean people can’t complain? No.

Fair Use is totally broken and maliciously designed to protect companies like Nintendo being evil. Evil, you ask? That’s using laws designed for you largely against their original purpose. That’s evil. That’s being a complete asshole.

And it’s about goddamn time we started expecting more from Nintendo than evil. That’s all we really want here. A massive international corporation to display just the slightest bit of respect for it’s fans like almost every other major company does regarding the vast, vast majority of fan works.

There’s nothing inherently more DMCA-able about fan works that let you push buttons, so it’s time to drop the facade. Either you’re against Nintendo abusing their fans, or you’re okay with them scrubbing all fan works of all kind from the internet. Legally, those are the two stances a company can take, because it’s “within their rights”, which everyone seems to see as a magic holy grail.

One final note, please don’t comment with the objectively false “but they’ll lose their copyright if they don’t protect it,” because I already wrote an article about how the recurring line of “they’ll lose their copyright” is objectively false. It’s probably worth a read too if you’re interested in this topic.

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Sir TapTap

Author: Sir TapTap

Gaming guide writer, content creator, streamer, UX designer, web developer, and a bunch of other stuff.