Fan projects do not threaten copyright protection, says lawyer.
33 replies, posted
[QUOTE]You’ve heard this before. If you don’t rigorously protect your copyright, you lose it! So companies, unfortunately, do what they have to do in order to keep operating and they don’t [I]really[/I] want to shut down projects at all!
It’s a tragedy but it’s so reasonable. What a solid argument, the company [I]seems[/I] like the bad guy, but they have to be because of those darn lawyers! Too bad it’s [I]a complete lie[/I] or extreme ignorance at best.
“But TapTap,” you bellow, outraged, “You’re not a lawyer!” I’m not! I’m a spikeball. But Sara F Hawkins is a lawyer, and she has a [URL="http://sarafhawkins.com/difference-copyright-vs-trademark-need-know/"]nice little article explaining the difference between copyright and trademark[/URL].
[/QUOTE]
[url]https://sirtaptap.com/2016/08/fan-projects-not-threaten-copyright-protections/[/url]
I hope Nintendo gets the memo but will they get the point?
I really wish people would go after Nintendo on this like they want after Blizzard for WoW private server closures, but I don't think they care enough.
AM2R took around [I]ten years[/I] to finish, is a fantastic final product and it just gets shut down on a technicality that isn't even valid. Everyone seems to be okay with this for some reason.
She's just a lawyer. She needs to convince a judge, not upset fans.
[QUOTE=false prophet;50904980]She's just a lawyer. She needs to convince a judge, not upset fans.[/QUOTE]
Actually read the OP. This is about getting the legions of people who keep insisting "but nintendo *has to* do this or they lose their IP!" to stop spreading that stupid myth in some kind of effort to improve nintendo's reputation.
[QUOTE=Simplemac3;50904979]I really wish people would go after Nintendo on this like they want after Blizzard for WoW private server closures, but I don't think they care enough.
AM2R took around [I]ten years[/I] to finish, is a fantastic final product and it just gets shut down on a technicality that isn't even valid. Everyone seems to be okay with this for some reason.[/QUOTE]
Actually read the OP. Nintendo is completely within their legal rights to send DMCA claims to anyone infringing their copyright and its not some kind of invalid technicality thats illegally getting it taken down.
Nintendo is making a conscious decision to exercise their legal rights to shit allover their community, wheras other more saavy developers tend to encourage and work with the community. This also extends to demanding a huge portion of the revenue from anyone making nintendo related youtube videos.
[QUOTE=Mattk50;50905106]Actually read the OP. This is about getting the legions of people who keep insisting "but nintendo *has to* do this or they lose their IP!" to stop spreading that stupid myth in some kind of effort to improve nintendo's reputation.
Actually read the OP. Nintendo is completely within their legal rights to send DMCA claims to anyone infringing their copyright and its not some kind of invalid technicality thats illegally getting it taken down.
Nintendo is making a conscious decision to exercise their legal rights to shit allover their community, wheras other more saavy developers tend to encourage and work with the community. This also extends to demanding a huge portion of the revenue from anyone making nintendo related youtube videos.[/QUOTE]
I'm aware that they're in their rights, it's just that people were trying really, really hard to take the blame off of them as if they had no choice. Even the developer of the game seems to think that they had to do this when really, they didn't. It was a conscious decision. It's the same thing as when Blizzard shut down Nostalrius, but there's a bunch of people vehemently defending it for some reason?
I'll admit I worded it poorly.
[QUOTE=Simplemac3;50905175]I'm aware that they're in their rights, it's just that people were trying really, really hard to take the blame off of them as if they had no choice. Even the developer of the game seems to think that they had to do this when really, they didn't. It was a conscious decision. It's the same thing as when Blizzard shut down Nostalrius, but there's a bunch of people vehemently defending it for some reason?
I'll admit I worded it poorly.[/QUOTE]
Ah, misinterpretation on my end. While its not quite not as bad as Nostalrius because these fangames are singleplayer and can be easily redistributed, wheras nostarlrius being down mmeans nobody is going to be playing ever, there really are tons of people who want to take the blame off nintendo here.
[QUOTE=Simplemac3;50905175]I'm aware that they're in their rights, it's just that people were trying really, really hard to take the blame off of them as if they had no choice. Even the developer of the game seems to think that they had to do this when really, they didn't. It was a conscious decision. It's the same thing as when Blizzard shut down Nostalrius, but there's a bunch of people vehemently defending it for some reason?
I'll admit I worded it poorly.[/QUOTE]
Technically speaking the trademark part probably still applies with Pokémon Uranium, but as the article points out infringement there is complex. I'm pretty sure that non-commercial use doesn't preclude it though, and it's a [I]very[/I] similar product (in the most basic meaning of that word).
If it does indeed apply, then the entire article is moot because it would completely miss the point in that case.
[QUOTE=Mattk50;50905210]Ah, misinterpretation on my end. While its not quite not as bad as Nostalrius because these fangames are singleplayer and can be easily redistributed, wheras nostarlrius being down mmeans nobody is going to be playing ever, there really are tons of people who want to take the blame off nintendo here.[/QUOTE]
It's more on my end, I might've gotten a little worked up over this in the past and neglected/forgotten a detail or two.
The other argument I see all the time is "It's taking sales away from Metroid 2 and Nintendo is still selling that!" But like, not only do I feel like most people that have interest in AM2R have already given it a shot and not only is Metroid 2 readily available for emulation, but Nintendo doesn't seem to be working on a Metroid 2 remake, themselves.
It's not just a free re-release of Metroid 2- most of the similarities are in map design, it's otherwise a very different game in general feel and mechanics, like how WoW wasn't actually losing money off of private servers because they flat-out refused to offer what the private servers were offering.
[QUOTE=Simplemac3;50905235]The other argument I see all the time is "It's taking sales away from Metroid 2 and Nintendo is still selling that!" But like, not only do I feel like most people that have interest in AM2R have already given it a shot and not only is Metroid 2 readily available for emulation, but Nintendo doesn't seem to be working on a Metroid 2 remake, themselves.[/QUOTE]
Taking away sales is one problem, but the larger problem is Nintendo had no say in the making of AM2R. The developers of AM2R can misrepresent Nintendo, making them potentially liable for anything they may say. In other words, they're letting someone without permission speak for them.
[QUOTE=KillerJaguar;50905463]Taking away sales is one problem, but the larger problem is Nintendo had no say in the making of AM2R. The developers of AM2R can misrepresent Nintendo, making them potentially liable for anything they may say. In other words, they're letting someone without permission speak for them.[/QUOTE]
Sorry, but I honestly can't wrap my head around this one at all- it's an obvious simple fan project and doesn't attempt to represent itself as anything different, how is it "letting someone else speak for them without permission?"
[QUOTE]I think the whole "oh they have to dmca the games because then they'll lose copyright' is bullshit because there are so many fangames from so many different franchises and I've never heard of any trademark or copyright being taken.
Same thing should apply to fan music or remixes and I've never heard a peep about that or fanart.[/QUOTE]
the only thing that'll make them change is if someone takes it to court and wins
boycotts usually never work unless you get a lot ([I]a lot[/I]) of people on board.
sure they need to change, then again, i really don't to see nintendo go under over this stuff. i'm a fan of their games, even if my opinion of them as a business is less than great.
[quote]Only trademarks are weakened by a lack of aggressive legal protection[/quote]
That's a big deal, good enough reason they're doing it.
Been saying this for years... Its completely fabricated based on trademark laws.
[QUOTE=Blizzerd;50907273]Been saying this for years... Its completely fabricated based on trademark laws.[/QUOTE]
Well, congrats on being wrong for years I guess. The article explains why the trademark concern is legitimate, it's just copyright that people erroneously think expires if not protected.
The thing is, the trademark is usually what they're defending in cases like these. They take down Pokemon fan games like Uranium because they use the Pokemon branding - the logo and the name are trademarks, not copyrights.
If you release a Metroid fan game that uses zero previous Metroid assets and doesn't use the Metroid trademarks (including name and logo), you'd probably be fine with trademarks. But if you use their copyrighted material - anything they used to produce an earlier game, or intellectual property like characters, you could get hit with copyright violations, which is what the OP's article is saying isn't necessary to actively protect. The Star Wars Battlefront remake teased on Steam recently got hit for using a trademark (Star Wars), so they rebranded and continued development without stepping on trademarks or copyrighted music. Most of these fan games do step on the trademark and not the copyright - sometimes you get both, like Galaxy in Turmoil using Williams' score.
Still a shitty move on Nintendo's part.
[QUOTE=greasemunky;50907339]Still a shitty move on Nintendo's part.[/QUOTE]
Not really, though. If they didn't actively protect the Pokemon trademark, it could be genericized and literally anyone could sell "Pokemon" games of any quality on any platform for any price. This happens to drug brands all the time - Tylenol, Heroin, Aspirin. Thermos used to be a brand, but it's legally genericized now and literally anyone can sell "a thermos," and it no longer has to come from the Thermos company.
This is a real issue for companies. Cellophane, dry ice, escalator, kerosene, laundromat, linoleum, sellotape, trampoline - these were all once trademarked brand names. Frisbee was used so commonly as a replacement for "disc" that Frisbee started sending C&Ds to people who called it "frisbee golf" instead of "disc golf," otherwise they would've lost their trademark and anyone could produce brand-name frisbees of any quality.
Nintendo has to protect the Pokemon trademark. If they didn't, and Pokemon Uranium was released on iOS for $5, and other people started referring to monster catching games as Pokemon Games, it could easily be genericized. It sucks, but that's how trademark law works. The article is right that copyright doesn't need to be defended - but logos, brand names, symbols, slogans, and marketing stuff all falls under trademark law and not copyright law.
[editline]18th August 2016[/editline]
I mean, shit, they could probably let stuff like Uranium slide and not make a big deal unless other people tried to profit off of it, but it's understandable why they care. I don't know about trademark law in Japan, either - maybe it's way more strict.
The big issue starts if competitors use your trademark for a competing product and you don't sue. There's loads of trademarked brand names where competing products don't use the trademark, so they're awkwardly genericized but still trademarked. Adrenaline, AstroTurf, Kleenex, Band-Aid, Bubble Wrap, Coke, Dumpster, Google, it goes on forever.
But if someone tried to sell "New Vanilla Soda Coke," Coca-Cola would bankrupt them immediately, even though loads of places in the US use "coke" as a generic term for soda. It's about competing products, and things like Uranium, despite being free, could be legally interpreted to be competing products. Because they're both video games. It's tricky.
[QUOTE=.Isak.;50907364]Not really, though. If they didn't actively protect the Pokemon trademark, it could be genericized and literally anyone could sell "Pokemon" games of any quality on any platform for any price. This happens to drug brands all the time - Tylenol, Heroin, Aspirin. Thermos used to be a brand, but it's legally genericized now and literally anyone can sell "a thermos," and it no longer has to come from the Thermos company.
This is a real issue for companies. Cellophane, dry ice, escalator, kerosene, laundromat, linoleum, sellotape, trampoline - these were all once trademarked brand names. Frisbee was used so commonly as a replacement for "disc" that Frisbee started sending C&Ds to people who called it "frisbee golf" instead of "disc golf," otherwise they would've lost their trademark and anyone could produce brand-name frisbees of any quality.
Nintendo has to protect the Pokemon trademark. If they didn't, and Pokemon Uranium was released on iOS for $5, and other people started referring to monster catching games as Pokemon Games, it could easily be genericized. It sucks, but that's how trademark law works. The article is right that copyright doesn't need to be defended - but logos, brand names, symbols, slogans, and marketing stuff all falls under trademark law and not copyright law.
[editline]18th August 2016[/editline]
I mean, shit, they could probably let stuff like Uranium slide and not make a big deal unless other people tried to profit off of it, but it's understandable why they care. I don't know about trademark law in Japan, either - maybe it's way more strict.
The big issue starts if competitors use your trademark for a competing product and you don't sue. There's loads of trademarked brand names where competing products don't use the trademark, so they're awkwardly genericized but still trademarked. Adrenaline, AstroTurf, Kleenex, Band-Aid, Bubble Wrap, Coke, Dumpster, Google, it goes on forever.
But if someone tried to sell "New Vanilla Soda Coke," Coca-Cola would bankrupt them immediately, even though loads of places in the US use "coke" as a generic term for soda. It's about competing products, and things like Uranium, despite being free, could be legally interpreted to be competing products. Because they're both video games. It's tricky.[/QUOTE]
I agree that they need to protect their trademark, but it doesn't even sound like they were going to work with their fans like any sort of company that gave a shit about said fans. Maybe they should have taken a second to think through and say "Well this is a high quality product we can give it our official blessing" and then take shitty knockoffs that are being sold to court.
I just really hate it when videogame companies put shit like this above their fans.
Simply change the name of the game that does not include "Pokemon" word, and you should be fine, no?
[QUOTE=VprVajraRpv;50907521]Simply change the name of the game that does not include "Pokemon" word, and you should be fine, no?[/QUOTE]
Pretty much all you have to do. Trademarks are limited in scope to slogans, logos, and brand names.
Star Wars: Galaxy in Turmoil is doing it correctly - also because somehow EA/Disney weren't massive dicks about it. They removed copyrighted content (like the John Williams score), and they rebranded into a separate game "inspired by" the Star Wars universe, not using the Star Wars trademark. They're legally in the clear - if they used copyrighted materials, they could still be sued, but it's not a legal necessity to protect the trademark
Notice that the Star Wars Darth Maul fan film is titled "DARTH MAUL: Apprentice" and not "Star Wars: Apprentice." They don't use the trademark at all in the entire short film. They're legally protected.
If Pokemon Uranium was titled "Pocket Beasts Uranium," and changed nothing else (assuming all other assets are custom), they'd be fine. Unless the Pokeball design is trademarked as a logo, but even then, it's likely they'd have to use the Pokeball as a logo and not just an item in the game. If A2MR was "Metroid-inspired" and not a complete remake, they'd probably be fine too. It's not super hard to get around.
[QUOTE=.Isak.;50907563]It's not super hard to get around.[/QUOTE]
Most of these projects basically want to have their cake and eat it too. They want to get the recognition and brand identity of the IP they're using, but they also want to do it without the blessing of the IP owners. Like you said, it's not hard to get around- just don't use trademarks, and make sure the company whose copyright you're using is okay with it.
[QUOTE=catbarf;50907624]Most of these projects basically want to have their cake and eat it too. They want to get the recognition and brand identity of the IP they're using, but they also want to do it without the blessing of the IP owners. Like you said, it's not hard to get around- just don't use trademarks, and make sure the company whose copyright you're using is okay with it.[/QUOTE]
Exactly this. I mean, I get it, sometimes classic game designs are basically dependent on the trademark. A classic sonic fan game would be objectively worse if it didn't have sonic in it. But there are laws about trademarks for good reason - there's hundreds of metroidvanias directly inspired by Metroid and Castlevanian and similar games. None of them abuse the trademark. If you're a half-competent developer and you contact the trademark holder ahead of time, you might be able to license their IP for a premium.
These free fan games are using someone else's trademark to market their product. You can't do that. It's the same thing as some nobody company making computers with the Apple logo on them and handing them out as "the new Apple iDesktop." Even if they're handing it out for free, they're damaging the original company's brand and they're using their brand to market themselves instead of building their own IP. Even if they made every part of that computer from raw metal, they're still using another company's trademark. If they called it the Arnold eDesktop, they'd be 100% in the clear. Just because you're a super fan doesn't mean you can use other people's trademarks. Pokemon Uranium would be perfectly okay if they called it Kanto Uranium. That's literally all they had to do.
[QUOTE=.Isak.;50907657] Pokemon Uranium would be perfectly okay if they called it Kanto Uranium. That's literally all they had to do.[/QUOTE]
Wait, would it be like Black Mesa where they had to drop the "Source" from the name but that was literally all they had to do?
[QUOTE=greasemunky;50907666]Wait, would it be like Black Mesa where they had to drop the "Source" from the name but that was literally all they had to do?[/QUOTE]
I don't know about Black Mesa specifically, but yeah, that's a decent example. But I'm pretty certain they got the trademark holder's blessing and permission to sell it for profit, so it's a different situation. Sonic Mania is another example - the fan worked with the trademark holder's blessing to create a game for them to publish officially. Street Fighter x Megaman is a fan game that got picked up and released by Capcom - the holder of the trademark.
Galaxy in Turmoil is the best example of what to do when you're given a C&D - just cease and desist [I]using the trademark[/I] while continuing to develop anyways. You still get the initial bump of interest from hijacking someone else's trademark, but then you still get to develop your game anyways (and potentially sell it for real money). Zelda Maker got a C&D from Nintendo and just renamed itself to "Legend Maker" and got rid of the Zelda sprites and they're in the clear with a Patreon running and everything.
Everything Nintendo has shut down has used their trademark. A C&D isn't "stop making this," it's "stop using our trademark." If you just cease doing that, you're clear. Most fan games just give up, like MechWarrior Living Legends, instead of just rebranding and continuing like they very easily could.
[QUOTE=.Isak.;50907657]Exactly this. I mean, I get it, sometimes classic game designs are basically dependent on the trademark. A classic sonic fan game would be objectively worse if it didn't have sonic in it. But there are laws about trademarks for good reason - there's hundreds of metroidvanias directly inspired by Metroid and Castlevanian and similar games. None of them abuse the trademark. If you're a half-competent developer and you contact the trademark holder ahead of time, you might be able to license their IP for a premium.
These free fan games are using someone else's trademark to market their product. You can't do that. It's the same thing as some nobody company making computers with the Apple logo on them and handing them out as "the new Apple iDesktop." Even if they're handing it out for free, they're damaging the original company's brand and they're using their brand to market themselves instead of building their own IP. Even if they made every part of that computer from raw metal, they're still using another company's trademark. If they called it the Arnold eDesktop, they'd be 100% in the clear. Just because you're a super fan doesn't mean you can use other people's trademarks. Pokemon Uranium would be perfectly okay if they called it Kanto Uranium. That's literally all they had to do.[/QUOTE]
I get what you're trying to explain, but I still think it's horse honkey that they did it. The intent out of A2MR isn't to market their own product using a brand name, it's a passion project. It being a Metroid game is the entire point of it. I'm not sure it could [I]exist[/I] as something else.
Nintendo had a pretty decent opportunity here to improve their currently abysmal relations with Metroid fans by doing something like what Capcom or Sega did, but instead they took a dump all over them.
I mean there are ways Nintendo could've handled this without putting their brand in danger other than shut it all down, no?
[QUOTE=Simplemac3;50904979]I really wish people would go after Nintendo on this like they want after Blizzard for WoW private server closures, but I don't think they care enough.
AM2R took around [I]ten years[/I] to finish, is a fantastic final product and it just gets shut down on a technicality that isn't even valid. Everyone seems to be okay with this for some reason.[/QUOTE]
Nintendo would have to use a C&D to legitimately kill AM2R. The DMCA only removed a few downloads that have now been replaced.
The project has even been updated with 1.1 but everyone seems to assume that it's completely dead because almost nobody is willing to just check.
What Nintendo did is awful and all but it's also the community's fault for not just checking [URL="http://metroid2remake.blogspot.com/"]the blog[/URL].
[QUOTE=Simplemac3;50909434]I get what you're trying to explain, but I still think it's horse honkey that they did it. The intent out of A2MR isn't to market their own product using a brand name, it's a passion project. It being a Metroid game is the entire point of it. I'm not sure it could [I]exist[/I] as something else.
Nintendo had a pretty decent opportunity here to improve their currently abysmal relations with Metroid fans by doing something like what Capcom or Sega did, but instead they took a dump all over them.
I mean there are ways Nintendo could've handled this without putting their brand in danger other than shut it all down, no?[/QUOTE]
The unfortunate angle is this: Yeah it would've been swell if Nintendo took both the Metroid and the Pokemon project under their wing, but the issue is that they both came up at a time where not only is a new, widely anticipated Pokemon game coming out, but a brand new Metroid game was released [I]today[/I].
It'd be very awkward timing if Nintendo were to announce that both of those series are also coming out with sanctioned fan-projects of in the near future.
[QUOTE=Blizzerd;50907273]Been saying this for years... Its completely fabricated based on trademark laws.[/QUOTE]
Not what i meant but ok. Was talking about how people based these ideas on trade mark rules with copyright
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