Posted by Josh @GWBycer
Josh is the owner of Game-Wisdom, where he examines the art and science of games through posts, podcasts and videos.

The ability to mod or design a game however you choose has been a popular option of the PC market for years. Name a game with modding support, and chances are you can find some mod or homage to another game.

Some programmers take this a step further, with unlicensed games featuring popular characters, to outright fan-made sequels. Just as how people are taking notice of indies, companies are paying attention to their IP and giving us another debate topic.

Defining Fair Use

Before we begin discussing, it’s important to catch everyone up on what fair use is. With Nintendo having filed claims against YouTubers, fair use is the common defense by fan creatives against copyright claims.

According to the Merriam-Webster, fair use is:

A legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.

I’ve had to make use of it numerous times for my reviews and spotlights on the Game-Wisdom YouTube channel. The content creator must be able to prove that they transformed the original work enough to be considered fair use. With that said, the creator can’t literally copy and paste someone else’s work or IP for an original project and call it their own.

There’s a big difference between using a ScrewAttack-styled power-up for your video game, and literally having a character that looks like Samus Aran. One big point of contention is the potential impact of the work on the market; keep that in the back of your mind for now, we’ll come back to it.

Fair use is based on several points on how the IP is/will be used.
Fair use is based on several points on how the IP is/will be used.

As modding grew and so too did the power of game engines, so has the ability for people to do more than just make mods for games.

'Pokémon Uranium' Depleted

While modding is still a popular way to see licensed characters in other video games, fan games have been steadily growing in popularity. Nintendo’s recent actions have caused two fan-made games to be taken down. The first game was the fan-made sequel Pokémon Uranium. It featured a new region and 150 fan-made Pokémon. Nintendo issued a cease and desist to the developers, who decided to shut up shop rather than face legal action.

The second game was Another Metroid 2. This was a remake of the Game Boy sequel, but with improved graphics and gameplay. Another Metroid 2 wasn’t up for long before the Digital Millennium Copyright Act cease and desist came in.

This is where the debate can take a nasty turn. Nintendo and co. will say they had to defend their IP. On the other hand, critics see this as a company attacking someone else’s hard work. Either way, it’s once again an example of the maddening process behind copyright law.

So, Who’s Right?

Copyright issues of this kind are very tricky to navigate. Everyone knows that fan-made games like AM2 and Pokémon Uranium were never created for financial gain. Using someone else’s IP in any form for a commercial product is an immediate denial of permission on the grounds of fair use laws. A blind eye can usually be turned to mods for games, as there is no profit made.

Nintendo had the legal right regarding the fan mods and YouTube content, but this legal course of action hurt the company's public perception.
Nintendo had the legal right regarding the fan mods and YouTube content, but this legal course of action hurt the company's public perception.

These modders were simply fans of their respective games and wanted to honor them. In AM2’s case, there wasn’t a new Metroid out for the 30th anniversary of the series.

With that said, we have to talk about the potential impact on the market. And both Pokémon and AM2 could easily be seen as impacting their respective markets.

If Nintendo were to release a new Metroid or Pokémon, it would have fans comparing its games with the fan-made versions. Sadly, the more professional the game, the more it looks like something from Nintendo.

I know what some of you are thinking right now: What’s the chance that a fan will confuse a fan-made game with a Nintendo game? I honestly don’t know, but what I do know is that Nintendo does not want its designs to be featured in anyone else’s game. The glaring red flag was the fact that the modders named their games after a Nintendo brand. Using the name of another brand is an easy case of copyright infringement, regardless of use.

Copyright holders must defend their IPs in all cases. At the end of the day, Nintendo, just like other IP holders, ultimately is the decider in this matter. If the company wants to receive a cut of the ad revenue on YouTube or block fan-made games, then it’s well within its legal right.

Whether that is consumer-minded right is another story. One thing is for sure, it makes debating this very difficult as a lover of game design.

Don’t Meet Your Heroes?

As someone who looks at both the development and consumer side of the industry, I’m stuck in the middle here. Developers definitely have the right to defend their IPs, no matter what anyone else says or complains about.

The ability for fans to interact with developers and their work continues to grow
The ability for fans to interact with developers and their work continues to grow

But with cases like AM2 and Pokémon Uranium — where people are just trying to pay homage to these beloved original games — what Nintendo should have done was snatch these projects up and welcome them onto the Wii-U store.

Sell them for a few dollars as fan appreciation games and give the creators a portion of the profit.

In this way, the IP is protected, the work can still be used, and Nintendo looks like a hero. Yes, what Nintendo did was within its right and no one can argue that part, but it’s as sure a negative PR move as anything.

There is a bigger issue here about the changing interaction between fans and their games/creators, but that’s another debate for another time. The issue of copyright law, when it comes to video games and their development, continues to be a thorn in the side of everyone concerned. I don’t know when things will be looked at again, but I hope that will come soon.

What's your opinion on fan-made games? Let me know in the comments section.

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