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.^[1]

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.^[2] Two of the affected games, Pokémon Uranium and AM2R, had been nominated for The Game Awards that year, and were subsequently removed.^[3] Later the same year, Pokémon Prism was also shut down.^[4]

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.^[5] 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.^[6]

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".^[2] 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".^[7] 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.^[8]

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.^[1]

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.^[9]

References