Are Fan Games Fair Use?

The ability to mod or design a game however you want has been a popular option of the PC market for years now. 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 give us another debate to talk about.

Defining Fair Use:

Before we begin talking about the debate, it's important to catch everyone up on what Fair Use is. Taken from my post talking about Nintendo filing claims against Youtubers, Fair use is the common defense by creators against copyright claims.

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 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 "screw attack" styled power up for your video game, and literally having a character that looks like Samus Aran. One big point 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 that.

As modding grew and the power of game engines, so has the ability for people to not 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 growing in popularity. The "I Wanna Be The..." series takes copyrighted sprites and models and puts them in super challenging games.

Nintendo's recent actions have caused two fan-made games to be taken down. The first game was the fan-made sequel to Pokémon, titled: Pokémon Uranium. It featured a new region and 150 fan-made Pokémon. Nintendo issued a cease and desist to the developers and they decided to shut down because of it.

The second game was Another Metroid 2. Another Metroid 2 was a remake of the Game Boy sequel with improved graphics and gameplay. Another Metroid 2 wasn't up for long before the DMCA cease and desist came in.

This is where the debate can take a nasty turn. Nintendo and defenders will say that they had to defend their IP. On the other side, 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.

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 going to be sold. Using someone else's IP in any form for a commercial product is an immediate denial of Fair-Use. Mods for games are usually swept under the rug as long as there is no profit involved.

They 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. I know what I'm going to say is going to piss people off, so please bear with me. With both Pokémon and AM2, both games could easily be seen as impacting the market.

If Nintendo was to release a new Metroid or Pokémon, they would have fans comparing their 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 I do know that Nintendo does not want their 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 IP in all cases. At the end of the day, Nintendo, just like other IP holders, ultimately is the decider in this matter. If they want to receive a cut of the ad revenue on YouTube or block fan-made games, then it's within their legal right.

Whether that is consumer-minded right is another story. One thing is for sure, it makes debating this very hard 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.

But cases like AM2 and Pokémon Uranium were people trying to make something in honor of these games. What Nintendo should have done was snatched 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. What Nintendo did was within their right and no one can argue that part, but it's as sure a negative PR move as anything.

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

[isarai]

As long as they're not asking for money for it, yes

[opinionated]

No. It is their property to do with as they see fit. Fair use would not hold up in court. They didn't even try to hide it through parody or anything. They blatantly broke copyright laws. Some companies decline to pursue or prosecute and that is their right. Nintendo obviously doesn't ignore it for whatever reason.

[sdcard4gb]

And Nintendo lost in what department because of them releasing their fan game, exactly ?

[opinionated]

Lost? As in financially? I would imagine not much. I don't know what their motivation is other than people using their property without consent. Maybe they don't like the way their property is portrayed in these games. Uranium referring to nuclear material and mutated Pokémon lol. I could make a bunch of excuses but the fact is that Nintendo doesn't like people using their property without paying their dues. They have a tight ass when it comes to live streaming, what makes you think they would allow a fan made franchise?

[ApocalypseShadow]

Am2r is the best game Nintendo NEVER made.

Some fans like myself wait and wait for years for the main company to make something that caters to the fans. And they are ignored.Only rarely do we get something like Capcom vs SNK. So, fans take it upon themselves to do what the parent company won't do. Is it copyrighted material? Yes. But if it's not sold for money, there should be no harm. Just like fan art, fan music remixes and fan movies. If those aren't taken down, why is a fan game taken down?

Been waiting for a new streets of rage. Sega won't make it. So SOR remake was made and is very good.
https://m.youtube.com/watch...
World heroes supreme justice
https://m.youtube.com/watch...
Marvel first alliance 2
https://m.youtube.com/watch...
Super final fight gold street fighter
https://m.youtube.com/watch...
He man
https://m.youtube.com/watch...
Art of Fighting Trouble in South Town
https://m.youtube.com/watch...

There's just so many like rocket viper 2, GI Joe open bor,super fighting spirit,fighters history revenge... So many fan made games that are good that just won't or can't be made by the owners. Just like this Mugen game of Marvel vs DC(so many mugen versions)
https://m.youtube.com/watch...

Fans love these properties. And when they can't get something, they make it themselves. But it's not for profit. It's for fun.

[Dan_scruggs]

no

[Matpan]

We tend to forget fandom is a great incubator for future devs. In hindering this we cut someone´s creativity and their drive to make. Sega´s approach is the right way to go, encourage fan games, and potentially draw from their lines to get the devs of tomorrow.

[sdcard4gb]

Very true.
Fans are the only people who matter in this fucking industry. They are the first and last wall of defense and doing what Nintendo did was a fucking travesty. I wonder if their late president agreed that they made the right decision.
Something makes me doubt he would've.

[jebabcock]

I hate to say it, but Nintendo's history in this regard goes quite a long while back. Iwata did nothing during his tenure to stop it and thus most assuredly agreed with it.

[OtakuDJK1NG-Rory]

If it's original asset and not straight up ripped from copyrighted games then yes it fair because you took the time to make original resources but if it straight use asset from copyrighted games such a AM2R and Pokemon Uranium then no it's not fair use.

[rainslacker]

It's not fair use when the premise of it is based exactly as the IP was created in the first place. The settings, exact story, or even not having the same main character will not make it fall under fair use, rather copyright or trademark infringement.

To liken it to an example, lets say that Traveller's Tales decided to make a Game of Thrones game, but didn't use any of the actual content created within the books or TV show itself, but expressly implied that it was indeed part of that universe, or representative of that universe. It would be derivative, but it certainly infringes on the rights of the IP holder.

See, in these games, they either directly or indirectly imply that the game is somehow connected to the actual product in question. Regardless of how the content is approached(remade with modern tech or some new scenario for instance), it is still considered an actual product of the IP.

Regardless of if someone charges or not, despite whether or not it's a fan love project, it still does not fall under fair use. The author of said work is using intellectual property they don't own to promote themselves in some way. Maybe not monetarily, maybe with no malice, but companies have a right, and in some cases a duty to protect their IP and trademarks. Not charging may mitigate any legal ramifications that come from such a claim, but charging itself is in no way a free pass to do whatever one likes. It's the actual distribution which is the problem more than the fee.

I think one thing people really don't actually know about trademark law is that a company has to actually protect it's trademarked and copyrighted work in order to retain trademarks. If they don't actually pursue these things that are fan made, then it's possible that someone else could actually trademark an IP should a company not be that diligent in maintaining it's property. Obviously for Nintendo, they aren't going to let many of their IP's lapse, but consider how often between releases they see some games, and how easy it would be to allow the trademark renewal to pass. The thing about trademarks though is that if it becomes common, they may not be able to get that back, opening all sorts of potential problems going forward.

Obviously there are some innocuous things out there which don't really threaten a company, their reputation, or even their IP's which are fan made, and some very well received. Things like fanfic is pretty common across every medium. Mods obviously often get away with a lot. Someone doing a project to recreate a small part of a game within an engine for demo purposes with no intention to distribute. Any number of other things I don't care to cite now. Many things which companies encourage or at least let go because it shows fans being fans, and who wouldn't like that? Even Nintendo doesn't really go after those people except in some specific instances of mods which use representations of their IP's.

[yomfweeee]

Pokemon Uranium and Another Metroid 2 have nothing to do with Fair Use. They are in no way a transformative use which I guess the author is offering as an excuse. Transformative use is using something in a new and unexpected way. Neither of those games fall into that.

[Tetsujin]

The bigger problem I see is some of the creativity ends up going to waste because the original owner "Didn't come up with the idea." If there's talented fans who put in the work, time, resources, and effort to make something good, hire them instead of seeking legal action. If they aren't asking for profit but rather recognition, I don't see the problem with hiring someone. At the end of the day most of these companies are basically saying "your creative mind is going to cost you, end of story," and/or "Wow why didn't we think of that? Oh yea because it would require spending $ which we don't want to."

With that said, there is a thin line between being a fan of something, coming up with a creative idea, and just a blatant rip off of an original work. A big example I've noticed recently is the Mario Maker for Wii U. I've seen so many fan made projects involving Mario games/levels (most are beyond difficult to pass) which resulted in Nintendo actually making a game based off this idea. If I had a Wii U I'd actually give it a shot to see some of the ideas people made.

Mega Man vs Street Fighter (PC only) started as a fan made project which Capcom adopted, did some changes, and released it as a free to play PC game to celebrate the 25 year anniversary.

I'm sure there's other examples but those are the ones I can think of right now. There's a few animation projects I'd like to try, however I'd make the project(s) enough to know I'm a fan of said IP without asking for money in return, but an opportunity within the company as a start.

[rainslacker]

I think the problems with going after them come up more when people intend to distribute it.

There are a great number of projects which only show off videos of their work, and I'd wager have extremely limited distribution. Those generally don't receive the ire of these companies.

However, when you have big projects, a lot of times, people want others to be able to play them, which is understandable. While I don't feel they normally do this to try and collect any compensation, and indeed probably just want to share their creation, its still a matter of an unlicensed product being distributed illegally.

I've really enjoyed seeing a lot of the recreation type work we've seen of late, where older games are recreated in things like Unreal. That is derivative work, and often, it's done out of a love, and in some cases ways to be noticed.

I agree, if someone is talented, go ahead and seek to hire them, but when doing so, there is more to it than their ability to create such a thing. Despite how good a product may be, there are quite a few disciplines that have to be understood regardless of one's particular skill set, and many developers nowadays are looking for people trained in game design, and not just people who can recreate work, or derivative work which isn't in line with modern game design principals. There is also the fact that these people may not actually care to actually work in the game industry.

Fan made content is becoming big nowadays. With more accessible ways to get into game design as a hobby than there was even 5 years ago, it's become a very real market for people to express their creativity. I think that's great, because going forward, it will get more people interested in game design. One just has to choose why they're doing something though. Making fan made projects and showing them off, and maybe even limited distribution of it will probably not cause any negative ramifications, so long as care is given to not causing harm to the IP. More companies are providing outlets for people to express this kind of creativity, and even giving distribution platforms so people can get that work into other people's hands. In some cases, these people can find jobs off this work, because it becomes a kind of living, active portfolio.

I don't know if expecting an opportunity with a company is the way to go though. You can easily make any kind of derivative work for portfolio purposes, and submit it with a resume if that is your intent. You will receive no cease and desist, and I can say right now that many portfolios I've seen do indeed have some kind of derivative work, and often times it can be impressive to see how people take the creative work of someone else and make it into their own(thus showing their own creativity which is an asset to a company), or showing they understand structure and the ability to work within the confines laid out by the company itself(also an asset as many people tend to think they know best and don't work well with others).

For your animation projects, go for it. Just be careful not to promote it as anything other than derivative work. Nowadays, fan animation is kind of akin to fan fic. Selling is a no-no, but making it, or displaying it, probably won't cause any problems. Might be worth researching the IP holders history on such things, and quite a few do have policies on the matter. Worst that is likely to happen, assuming you aren't selling it, is a cease and desist.

[Tetsujin]

I had one idea for my animation class, and the teacher was surprised I was able to pull off (a quote from a well known poem from a high profile fighting game). Did I sell it? No. It was for educational purposes to show it is possible to mix different mediums and still provide good content. I do agree though at the end of the day there's a thin line between fan made projects and blatant copying of original work(s). I'd suggest if someone does want to promote their ideas, make sure to put some disclaimer regarding no profit to be made, it's to show talent and/or recognition for a potential job opportunity.

When I enter the gaming industry, I'm going to be looking for talent, passion, and drive. Just because someone has an education in said position doesn't mean they have the right mind set; I've met some students who are in the profession only for the $, not because they want to make a difference, or because they like the area of expertise. Makes me sick to hear them all the time say "I can make an app using my student loan refund, and make millions off something I spent maybe 4 hours on." It's the sad truth in some cases, but to make something JUST for $ is the reason a lot of people look at gaming as a joke anymore instead of art.

[DefenderOfDoom2]

Studio 'Paramount' kinda going thru the same debacle with fan made STAR TREK episodes and movies .

[zugdar]

Why do you have to use the franchise? If the Metriod was still Metroid like without using the IP directly the user would A) Not get in trouble with Nintendo. B) Could sell it if they saw fit C) Possibly start a new franchise all together and fill the void that fan are clamoring for.

[s45gr32]

Nintendo should of done it like Valve. Publish the fan made games sell it and give some profit to the creators. That is what Valve did with counterstrike.