Re: SMBX2 (2.0 Beta 3)
Posted: Wed Oct 25, 2017 9:13 pm
They haven't given us any "wishes", if they did, we would.FanofSMBX wrote:What's wrong with wanting to honor Nintendo's wishes? I'm serious.
The thing is, Nintendo are busy. They have a lot to deal with themselves without giving specific permission (or not) to every single fan project in existence - there are a lot of them.
We're using something called "fair use" here. The way fair use works, in simple terms, is that you can make a thing using someone else's IP provided it falls into one of a few categories. It's mainly designed to protect things like reviews and parodies, but it's a bit of a grey area when it comes to fan projects like this. The way this sort of thing is usually handled is that the project is provided for free and with no income stream (i.e. the fan project creators do not sell or otherwise profit from the work), and work under the assumption of fair use unless the IP holder challenges it. Usually, most companies will just ignore these projects, because they do no harm, and are a fun way for fans to express their love for a specific franchise. Cases like AM2R are a bit more difficult, because it's now clear that Nintendo was working on their own Metroid 2 remake, and AM2R was in direct competition with that.
As it says on the blog, we believe we're protected under fair use with this project, but if Nintendo suggests otherwise (which they have not done, directly or indirectly), we will defer to their judgement.
Fair use is built so that 1) large IP holders like Nintendo don't have to spend hours upon hours of staff time responding to fan requests and 2) protecting people who seek to comment on, review, parody, etc. IPs.
The thing is, the idea of going on some sort of pre-emptive crusade to force Nintendo to legitimise projects like this is just asking for trouble. The SMBX community is not huge. Nintendo would literally not care if we all vanished and never bought another Nintendo product, but let's face it, that won't happen either. The other thing to keep in mind is that certain laws, like US trademark laws, FORCE companies to take action if they become aware of an infringement, even if they'd rather just let it be (See Scrolls vs The Elder Scrolls for an example of just such a ridiculous case). Most of the time, people on all sides are fully aware of how stupid these cases are, and in most cases, everyone would just prefer to let it slide. However, US trademark law means that if someone infringes a trademark and you DON'T protect it, you lose that trademark. Now, I don't know about you, but I don't think Nintendo is going to risk losing the trademark to Super Mario Bros. just to let a fangame stay alive.
In short, your suggestion is fairly childish and it will either result in no response, or Nintendo nuking the project to cover their own backs (even if they'd rather let it slide). By explicitly asking them, you draw Nintendo's official attention to the project, and once that happens it can only end with a complete shutdown. Note that I said "official" attention. It's likely at least some Nintendo staff are aware of it already, and believe they have enough deniability to put it out of mind from a legal perspective. Once you bring it to Nintendo's attention on official channels, that deniability may vanish, and Nintendo may be forced to respond in a way they'd rather not have to do, in order to avoid potential future backlash from less harmless uses of their IP. It's not a good idea to get the legal machine whirring, because once things get into that legal footing, things get messy very quickly, and not for "Nintendo's wishes".