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.