Nintendo & Fan Games

Ahead of tomorrow’s Sonic Amateur Games Expo, members of the Source Gaming team have gathered around to discuss their thoughts on the way Nintendo handles fan games!

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Nintendo is very much in their legal right to take down fan games. However, I do worry about it ‘leaving a bad taste in everyone’s mouth’. In clear cases where the fan game is going to prevent Nintendo from profiting, then yes,
I can understand that. Mario 64 shouldn’t be remade into a new engine, as it might take away sales from the actual Mario 64.

AM2R, while obviously made from a developer who is extremely passionate about the Metroid franchise, crossed the line into the illegal territory. Should Nintendo have shut down AM2R many years ago? Absolutely. It must have been extremely disheartening to have put so much time into a project (that was relatively known and expected) only to get it shut down after it was release.

To be frank, now’s not a good time to release a fan game. They’ve been gathering a lot more press lately because Nintendo doesn’t have anything really announced for the rest of this year. Nintendo fans are hungry for NX news, and they want to play games. AM2R and Pokémon Uranium filled the vacuum too well, and Nintendo’s lawyers probably got worried about the coverage of unauthorized use of their IPs.

I was discussing this issue with Soma, and we were talking about why fan games are different from fan fiction, or fan made videos. The simple answer is this: the barrier for entry with fan fiction is much, much lower than the barrier for entry with fan games (and other kinds of fan projects). Anyone can literally write fan fiction. With fan games, there is some special knowledge that is required.

At the same time, a lot of games are rip offs of another. Mario Runner is “inspired” by other runner style games, a genre that is very popular. Minecraft style games exploded in popularity: some improving the formula while others were trying to ride on Minecraft’s coattails. I guess the major difference is for these games, they use unique assets and worlds — even if only minor differences exist.  

I think Nintendo should look into ways to incorporate some fan projects into their own developmental schedule. It’s no secret that Sega is doing this with Sonic, which is creating a lot of excitement for its’ fans. On the other hand, Nintendo might be afraid of legitimizing fan games as a means to get noticed (in a positive light) by Nintendo as it might encourage more fan projects. Nintendo’s IPs are worth a lot, and they are going to do whatever they can to protect them.

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There’s no denying that Nintendo currently have every legal right to take down most of the fan games. Maybe we find a competent lawyer, who can enlighten us about the whole legal situation but the current knowledge is that Nintendo has the right to demand a take down, when they think someone damages their brand without any agreements. And yet, Nintendo hits the wrong people.

Not going to focus on the whole “passion” aspect, but if you’re punishing your loyal fanbase with strike downs just for showing passion for your brand, then you absolutely need to rethink your approach to fans. And they have the right to be “angry” about Nintendo’s take down decisions, since most fan games were made as a tribute to their beloved franchise and not as a shady way to earn money…

…Which I also don’t want to ignore. Of course Nintendo should take actions, when someone earns money from their intellectual property. Even when fans make free remakes, Nintendo should step in since fan remakes don’t add new commentary to the game itself and just damages Nintendo’s business model. But Nintendo should draw a line between someone else profiting from their brands and fan projects with no profit intentions. And I doubt that fan games would even damage much their brands, since in case for AM2R and Pokemon Uranium, those games became more popular AFTER the take down and there was not much coverage about those games before (AM2R‘s Take Down was understandable for another reason, tho). And this is also a fact for so many other fan games, that lived alongside the official games before Nintendo’s DMCA rampage. And both formats can still coexist with each other without damaging the other, like fan fictions does with published books or fan artworks with official artwork.

And yes, I read the comment about PushDustIn’s and Soma’s discussion about the entry level of creating fan games and and came to the only conclusion: How does this even matter?!

What does this say about the fan game and the official game? Yes, creating artworks and fan fiction is way easier and creating fan games is excluded to only a few people. So what?

While you can imitate a certain artstyle 1:1, you can’t always do that with fan games, since you also need to account the player’s experience. So it’s extremely difficult for a fan game to imitate the exact same experience like the real deal. And is this not an argument for Nintendo allowing fan games? While people make money (legally) with artworks or fan fictions because someone mistook it for an official product, you can instantly tell by fan games that this is not a product endorsed by Nintendo since most people can tell the difference by playing it. That’s the advantage of the official product over fan artwork and fan fiction. If they care is another thing, but it’s a very weak argument to say “Entry level is much higher for creating fan games”, when it only proves that it’s just very very hard to make it look and feel official. So no, just because the difficulty is much harder doesn’t mean, that said medium is not a platform for fan creations. When we only look at the aspect of giving commentary to a brand, is it positive or negative, then absolutely no, fan games are not different from fan artworks or fan fictions. And shouldn’t be treated different just because only a few can successfully create an appealing fan game.

If we want to take this industry seriously, then we should allow commentary in this interactive medium. And this is what art is all about, so we have to decide if we want games to be treated as art or just as a product. I know it’s easier said than done, since interactive commentary is not something done “easy”, especially when we look at certain fan games, which only wants to be fun (Also, Fan Games are not the only way to achieve that commentary, but it’s ONE of them. Just to clarify that)

But if we stop right there and suddenly allow Nintendo abusing a system, which is not meant to be used like that, Fan Games can never evolve to a proper commentary and games will have a more difficult time to be seen as art and rather as pure business.

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People always need to be aware when making fan games that the big man on top could come in at any minute and take it all away. This is a risk fan makers have to live with but should it always be this way. Unfortunately the answer is yes. Many companies act in different ways to fan games and while some people are quick to jump to Capcom and Sega as people who have embraced fan mods and games let us not act like Nintendo is alone in taking these projects down. Nintendo is no worse than Square or Konami in this regard and they have every right to take these games down.

Do not get me wrong, I would love Nintendo to pull a Sega or Capcom and see these fan-games as opportunity for new games. Cancel AM2R but bring the creator in, rework it and release an official Metroid 2 remake with him at the helm. Alas, this does not seem like Nintendo’s way and while that is a shame I also feel that their stance on the matter is perfectly justifiable. Nintendo have always been very controlling over their intellectual properties and want to make sure they are not misrepresented. Many times fan games can do this in ways where they do not always intend to. Pokemon Uranium attempted to make an ‘edgy’ Pokemon game but in doing so misrepresented what Nintendo wants this franchise to be about. Not to mention that by creating new Pokemon and letting this get big then some people who do not know any better may mistake the Fakemons for the real deal and then get upset with Nintendo for not using them. These are all factors Nintendo have to deal with when it comes to fan games.

There is also the topic of do fan games hurt sales and in some regards I think they do. A Metroid 2 remake could come out but people may very well compare it to AM2R and if it is not as good then what motivation do people have to buy Nintendo’s product? There is a better version of it for free online. That does hurt sales and even if Nintendo are not making a Metroid 2 remake now they may very well in the future. It’s like how a patent is filed because a company wants to secure an idea but may not follow through with it in the end for whatever reason.

Now when it comes to fan games that are not remakes that is a different story. Honestly as long as these ones are free I feel like Nintendo should leave them alone. They have not and they have every right to take them down, especially if that fan game is offensive in some way. But not all of them are which means it may just be a case of not wanting to risk it. They will not play through every fan game so will judge them all as bad as it is easier. This is the sad truth but it is a truth nonetheless.

n learning about business, one of the most important pieces of information I learned is control. You need to have control of your business, so be the largest voting shareholder. You need to control your investments, so do it yourself rather than having a money manager do it. And, of course, you need to control your emotions. Control is key.

When you make a fan game, you don’t have control. You can say Nintendo is being a bully and that it’s a bad idea to attack their fans; however, at the end of the day, Nintendo controls the IPs. If Nintendo says you are not suppose to use, then there is nothing you can do about. While fans may be passionate about the company’s games and characters, they don’t have a say in how they are used. Nintendo has to protect their greatest assets and they need to establish a legal precedent. Regardless if its the right choice or not, its Nintendo’s choice.

This is why I say if you are passionate about making a game, make your own. Build your own characters and worlds. Then you can sell it. Then you can do with it as you please. Then you control it.

What do you think of Nintendo’s relationship with fan-made games? Sound off in the comments below!

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One comment

  1. Honestly, as long as the fan-game has at least a 40% similarity to the actual game (not sure about fan-games based on non-video game works such as Dragon ball Z or Sherlock Holmes since it’s impossible to tell) in terms of gameplay I’m okay with fan-games being around. Nintendo and some other companies are just trying to uphold the law and I see no problem with their decision. My only concern about this issue is how outdated and possibly anti-progressive in terms of creativity international copyright agreements are. They tend to be for profit, anti-competitive, and one-sided towards mega corporations such as Disney and Universal. With the DMCA law in the United States companies can just abuse the system to take down just about anything (although I don’t think this could happen anymore now that ICANN runs the internet).

    The only solution that I see is to create laws that benefit non-profit fan-works (e.g: making them a part of Fair Use or something) so long as it doesn’t mimic the game mechanics of the game that it’s based off of. But, some companies such as Konami and Square Enix tend to be stingy with their I.P.s and will fight tooth and nail to block any bill that could potentially “damage” their copyrighted works. It would be a long road before something beneficial could be done to solve this debacle.

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