Intellectual property protection by Nintendo

The stance of Nintendo, a video game company, towards fan games has historically been hostile, in accordance with their proactive protections on intellectual property (IP) usage. Fan games have been heavily targeted for removal by the company, resulting in numerous DMCA takedowns. As Nintendo is one of the most popular companies in the gaming realm for fan-made content, this strict enforcement of copyright guidelines has proven controversial with critics and fans.

Despite acknowledging that these takedowns are within Nintendo's rights, critics have argued that Nintendo should set guidelines and policies on fan content in a similar vein as other major publishers, such as Riot Games, Bethesda Softworks, and Sega, in order to maintain fan goodwill and allow for free expression. While former Nintendo president Satoru Iwata expressed interest in adopting such guidelines in 2010, Nintendo has since maintained a hardline stance, removing anything remotely popular that might infringe upon a Nintendo copyright. Despite Nintendo's assertions that they are protecting their copyright, their common takedowns of free, not-for-profit games have been described as legally unnecessary, as they are normally used as a "last line of defense" against those seeking to profit from another's IP.

History

In 2016, Nintendo issued DMCA takedowns for hundreds of fan games hosted on the platform Game Jolt, as well as others off-site, such as the unofficial Metroid II remake, AM2R. This followed another takedown request for AM2R issued earlier that year. Two of the affected games, Pokémon Uranium and AM2R, had been nominated for The Game Awards that year, and were subsequently removed. Later the same year, Pokémon Prism was also shut down. In 2020, an in-development Mother 3 fan sequel previously dubbed Mother 4 was renamed Oddity, and its references to the series removed, in order to prevent the game from being taken down. In 2021, Nintendo of America's legal team issued a mass DMCA takedown of 379 games removed out from Game Jolt. Many of the games' developers and fans have been taken it by surprise, although Nintendo's mention of advertisement revenue being used on the games' page made the reasoning behind the takedowns. An "ambitious" Metroid-based fan game, Metroid Prime 2D, which had been in development for 15 years, was taken down by Nintendo in August 2021, four months after a demo was released.

In March 2024, former lawyer of The Pokemon Company Don McGowan interviewed with Aftermath about his time working at Bungie and the company. McGowan also discussed about the company's approach to cease and desist and point out that there was many discussions about the 2024 video game Palworld due to its similarity to the Pokémon franchise and Nintendo taking down a mod that added Pokémon for the game. Around the same month, Relic Castle, an unofficial Pokémon forum website has been taken offline after being allegedly received a DMCA takedown notice. The details of the alleged notice haven't been confirmed, so as if the takedown comes directly from The Pokemon Company. GamesRadar+ and VG247 noted It likely due to the fan games that were shared in the website, although the website didn't host the games directly. On April 2024, the sandbox game Garry’s Mod receive copyright takedown requests from Nintendo to remove all of the downloadable content that infringe Nintendo copyright. The game's creator Garry Newman made a post telling users that they may have noticed certain Nintendo-related contents removed. While Garry’s Mod began removing Nintendo-related contents, some users believed the requests were from a troll however, Newman confirmed that he has been assured the takedown requests are legit.

List of takedowns

• April 2010: Takedown of Pokemon MMO Pokenet.
• March 2015: Takedown of fan made remake of Super Mario 64 titled Super Mario 64 HD.
• May 2015: Takedown of The Legend of Zelda Ocarina of Time 2D, a fan remake of Ocarina of Time in the style of A Link to the Past.
• April 2016: Takedown of Zelda tribute game Zelda30Tribute.
• August 2016: Discontinuation of AM2R, an unofficial remake of Metroid II.
• August 2016: Takedown of Pokemon fangame Pokemon Uranium.
• September 2016: Takedown of No Mario's Sky, a fangame of No Man's Sky and Super Mario Bros. Game rebranded as DMCA's Sky.
• May 2016: Takedown of website and GitHub source code for Full Screen Mario, a web-based recreation of Super Mario Bros.
• November 2016: AM2R and Pokemon Uranium have "Best Fan Creation" nominations revoked from The Game Awards.
• December 2016: Pokemon fan hack Pokemon Prism receives cease and desist four days before release.
• December 2020: Removal of 379 fan games from Game Jolt.
• January 2022: Removing videos of Second Wind mod for The Legend of Zelda: Breath of the Wild.
• January 2022: Removal of YouTube videos for fan-made Pokemon first person shooter.
• January 2024: DMCA takedown of Palworld mod to add Pokemon.
• March 2024: Pokemon fan game site Relic Castle receives DMCA takedown.
• April 25, 2024: DMCA takedown of Nintendo-related Steam Workshop content for Garry's Mod.

Reception

In 2016, Sean Buckley of Engadget remarked on the takedown of 500 games. While noting that Nintendo was "within its right to put a lid on these fan projects", he called the takedowns "always a bummer". He described the removed games as "passionate fan works", and AM2R as "lovingly crafted". Kyle Orland of Ars Technica remarked on this as well, saying that while cease-and-desist letters were nothing new in the gaming industry, Nintendo's stance was "wide-ranging" and "hardline". Jon Partridge of Red Bull said that while most of the removed games would "not be missed", several of the removed games were nevertheless "amazing", such as Pokémon Uranium and AM2R.

In 2017, Owen S. Good of Polygon argued that creating and sharing fan games was a "significant part of gaming culture" that could not be denied or shut down by publishers, despite Nintendo's attempts to do so. Using the example of Breath of the NES, a 2D fan-made demake of The Legend of Zelda: Breath of the Wild, he highlighted that any creators making fan games based on Nintendo IP expected to be shut down, forcing creators to remove any Nintendo references. While many fans adopted the position that fan games should not be advertised until they were released, allowing for "underground" distribution, this would be completely untenable for many fan game creators, who would receive no player feedback or motivation to continue development. Stephen McArthur, the "video game lawyer", was interviewed for the piece, and noted that most major publishers had rules for fan-created content that incorporates their IP. He stated that, while publishers reserve the right to shut something down for any reason, blanket prohibitions on fan works are "legally unnecessary and also a terrible business and marketing policy". He also noted that Nintendo's repeated takedowns had no proactive effect, as they did not stop further fan works from being created, while at the same time angering fans. Developers simply assume that they will be caught and proceed with making the game anyway.

In 2019, Luke Plunkett of Kotaku said that Nintendo's copyright takedowns were so "predictable and tragic" that they had become an Internet meme, noting that Nintendo was disproportionately focused on removing fan games, while ignoring fan art, music, etc. While saying that Nintendo's lawyers have a "job to do" and that they should not be blamed, he still expressed his opinion that "the letter of the law can and does suck", and that the company was failing to distinguish between "things that are trying to steal from them" and "homages to their legacy". He described Nintendo's response at the time as "almost algorithmic" and "ruthless" in "shutting down even the most innocuous projects". He highlighted Nintendo's former Creator's Program for YouTube videos as an example to emulate in the fan game realm, and said that, even outside Nintendo's legal departments, many in Nintendo, such as employees at Game Freak, enjoyed seeing fan games. He also noted that Installation 01, a Halo fan game, had reached a deal with Microsoft to continue development, saying that such things could be possible with Nintendo fan games as well.