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.

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Fan Projects Do Not Threaten Copyright Protections

I’m angry. You see, recently a truly fantastic Metroid 2 fan recreation was released: AM2R. I played it for a live stream. It’s truly fantastic, and has an amazing amount of original work put into it, being far and away more than a “fan port” of the game.

But then it got taken down by everyone’s least favorite four letter word, a DMCA, straight from Nintendo. I’m very frustrated with Nintendo for the copyright claim, very frustrated the game was taken down (though torrent sites seem to be ensuring it will not be lost). But that’s not what I’m writing this article about.

I’m writing this because this conversation about copyright and fan projects is…the same as all conversations about fan projects. The conversation is full of ignorance, misunderstanding, and what I can only assume are deliberate bald-faced lies about what companies have to do to protect their copyright.

Companies Don’t Have To Shut Down Projects to Keep Copyright

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