TKO Creations

It’s a bit interesting that the topic of Nintendo and their heavy legal hand has jumped into the news again. In 2004, this very topic was the subject of my sophomore year thesis paper for journalism composition. So, this is something that I actually had a bit of (dated) knowledge about. But one thing I’m not is astonished that they largely haven’t changed their stripes in the following twenty years, because they had been largely the same way twenty years before my exploration into their legal procedures.

One thing that I’d ask people to internalize is the phrase “technically correct,” because you’re probably going to hear it quite a bit in this blog post.

Part of the “Nintendo Problem” is that I think gamers are asking the wrong questions. The important question isn’t, “Why is Nintendo like this? Why do they shut down fan projects? Why do they harass Youtubers and other content creators?” Because that question has a very simple (and technically correct) answer. “Because they have to.”

See, the case with Nintendo isn’t about copyright. They certainly have copyrights to all of their work, but that’s not what compels them to be so aggressive. The issue is that Nintendo takes most of their IPs into the realm of trademark, which is a somewhat related but altogether different thing.

Trademark behaves much like a lot of gamers think copyright works. Trademark requires you to “defend it or lose it.” And it is actually a fight over trademark that is the core of one of Nintendo’s most prominent IPs.

We’re gonna dial the time machine to 1982. Nintendo had a deal for a Popeye video game fall through, and Shigeru Miyamoto decided to rework the game they had to feature “Jumpman” (who was the inspiration for Mario), and a big ape named “Donkey Kong.” I won’t go through the entire blow for blow of that case, but there’s a pretty good write-up of it at this link.

Long-ish story short; Nintendo was able to demonstrate that Universal Studios did not adequately defend the King Kong trademark, allowing tons of unlicensed material of King Kong to exist… and that’s presuming that Universal Studios even held the trademark for King Kong to begin with, which they also managed to cast into doubt.

At the end of the day, Nintendo won on quite literally every count, and they learned all the wrong lessons from that battle. Realizing just how powerful trademark can be, they started trademarking everything that wasn’t nailed down, and probably a few things that were. By the time I wrote my thesis almost twenty years ago, they had approximately 1500 unique trademarks, and assuredly that number is even larger now.

Some of those trademarks are positively absurd. For example, the sound the Mario games make when he collects a coin? That is a Nintendo trademark. The rainbow hued charging plates you saw in the (long ignored) F-Zero series? Yep. That’s a Nintendo trademark. Each and every different suit that Samus has ever worn in the Metroid series? Yeah… I think you see where this is going.

The question really shouldn’t be “Why is Nintendo so aggressive?” The question should be, “Why the hell does Nintendo have so many profoundly ridiculous trademarks?”

It’s because Nintendo realized the power of trademark. It allows them the legal power to shut down mods of their games in ways that copyright really doesn’t. Nintendo’s executives will shrug and say that trademark compels them, and they’re technically correct.

It’s why they can shut down a Let’s Play for charity (which they have been doing literally from the instant Justin.tv was birthed into existence). They’ll respond, “We have to. If we didn’t shut down this charity stream for St. Jude, then someone like Tucker Carlson can host an anti-trans stream using the same game, and we can’t stop him.” This is also technically correct.

But, technically correct isn’t actually correct. Nintendo uses restraint quite frequently when handling trademark issues, and exercises considerable discretion… when they want to. For a great number of derivative works, Nintendo is more than willing to see no evil (just take a look through any Nintendo IP category on AO3 or Deviantart for evidence of that). They can absolutely allow fair use without risking their trademark, and they do so quite frequently.

As a general rule, there are two ways to raise your risk of receiving a letter from Nintendo’s Legal Division to the danger zone:

The first way is to create a fan work of something they are in planning to do, or in active development of. This is what got the creator of the Mario Battle Royale and the fan remake of Samus Returns in trouble, evidenced by the “limited release” of Mario 35, and the official remake of Samus Returns.

These are things that are rather petty; clearing the field of any potential (and free) competition for their products. This isn’t uniquely a Nintendo problem. For example, if someone had made a fan remake of Resident Evil 4, Capcom is quite angrily demanding that get yanked off of the creator’s Google Drive. If someone developed a Final Fantasy game and called it Final Fantasy 16, SquareEnix isn’t going to be patting them on the back and saying good work.

But that’s not how it has to be. Bethesda happily invites mods of their work, and has on a couple occasions tried to launch programs to financially compensate modders for their work. Sega (as the title of this blog post implies) happily embraces fan work. Hell, if you do a good enough job, they’ll hire you do it. That’s how one of the Sonic series came to be, if I remember correctly.

Nintendo could be a lot more agreeable on this score. They choose not to be. That’s an active choice, not one compelled solely by trademark.

The second way to get on Nintendo’s shit list is what the bulk of the complaints on this issue stem from, however, and it’s one where there is a very clear narrative that one side really wants you to buy, sometimes quite literally.

When you try to make money off of Nintendo’s IP.

When Gary Bowser (yeah, if I had a nickel for every time a Nintendo story popped up about a real life dude named Bowser, I’d have two nickels… which isn’t a lot, but kinda funny how it happened twice) was arrested and his wages garnished for the rest of his life, he wasn’t just some nice guy trying to help poor kids play Nintendo games that just couldn’t afford them. He was one of the brains behind a group called Team Xecuter, a hacker collab that sold ransomware hidden under the hood of Nintendo products. You can certainly argue that his punishment is excessive (40 months in jail, and $10 million in fines to be paid to Nintendo), and I’d honestly agree, but he was not some fair Robin Hood of this story being railroaded by this massive corporate Sheriff of Nottingham, and that people want to believe he is isn’t really Nintendo’s problem outside of the PR hit they are taking in the court of public opinion.

It’s also at the heart of a lot of content creators that are seeing their videos stripped of ad revenue. This tends to happen every time Nintendo is getting ready to launch a title on one of their flagship IPs. Now, the nature of fair use when it comes to Youtube videos or other “critical” media is very blurry, and it’s not entirely clear whether or not such videos that use extensive cuts of copyrighted and/or trademarked IP falls under that umbrella. Nintendo absolutely is taking advantage of that ambiguity to bully Youtube and Twitch and TikTok or whatever into shutting down monetized content.

But, as I noted, this isn’t new. These content creators know exactly who they are dealing with, and what they potentially risk, when they post a video about Nintendo products and hit that “ad revenue” option. They know that Nintendo videos get eyeballs, and rack up the most views and ad revenue as a result. That’s why they are constantly trying to make Mario and Zelda and Metroid videos, and not Sonic or Skyrim. These are largely not innocent people just trying to show their love for their favorite products. These are fans who are trying get some scratch, and are using their favorite games to do it. They’re inviting people to sub to their Patreon for quick sneak peeks. They’re inviting them to donate or sub to their Twitch channel (you get one free sub if you have Amazon Prime, ya know).

These are people who know they are riding a tiger. They shouldn’t be crying out their victimhood when that tiger mauls them.

What Nintendo wants out of their exercise of trademark is the right to dictate how the customer enjoys their product, sometimes in very specific ways, on terms that can seem like they change daily. If you find those terms agreeable (and hundreds of millions of people very clearly do), then you’re not going to see much of a problem with Nintendo’s practices. Frankly… that’s okay. Nintendo is not a monopoly, and they don’t even dictate how video game fair use is handled, much less media as a whole. It’s not the dire issue that a legion of content creators want you to think it is.

That said, if those IPs are something you are emotionally invested in, it’s also okay to be angry about how Nintendo treats those who want to express their love of that product. Nintendo is willfully obtuse about the legality of what they do, nor are they always consistent in how they handle derivative works. It is worthy of criticism, even if it’s not the dire omen that those who are also financially invested want you to believe it is.