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Nintendo continues its fight against gamers
#31
(08-28-2018, 11:19 AM)Iron Wrote: This is, however, a big change in the culture of the Pokemon fanbase.


It certainly is, and I'm a little worried what this will mean for the ongoing Fanprojects and their dedicated teams. While I don't believe that they will just stop what they're doing and throw away all the work and love they've put and are putting into their Games, I'm sure it'll have notable consequences when new Versions/Updates/Patches etc. are ready to be released, as hosting downloads of these will pertty much considered illegal or at least a grey area.

Feels a little like everything will be passed over to the players behind closed doors and in silence.
"Anything can be art. Anything can be self-expression. Now take your weapon and run with it"
- Gerard Way

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#32
(08-28-2018, 11:19 AM)Iron Wrote: No, it does not fall under fair use. Pokemon Essentials uses Nintendo IP and they have every legal right to demand it be taken down. Fair use only applies to parody and very small selections of an IP for criticism. Even fanfiction is not legally protected.

According to the link that Mika posted though, transformative works have fallen under the category of Fair Use, particularly in several U.S. Supreme Court cases:

Quote:The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.... A key consideration in recent fair use cases is the extent to which the use is transformative. In the 1994 decision Campbell v. Acuff-Rose Music Inc,[11] the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use.[12] Before the Campbell decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward a Fair Use Standard.[9] Blanch v. Koons is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting.[13] Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.

If there's no commercial gain, just art for the sake of art -- or education, as some could argue that Pokemon Essentials would be (archiving sprites, teaching programming skills) -- such as would be the case with fanart, fanfic, and even fangames, then by the precedent set in the Supreme Court, it would be Fair Use.
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#33
(08-28-2018, 10:39 PM)EeveeBailey Wrote:
(08-28-2018, 11:19 AM)Iron Wrote: No, it does not fall under fair use. Pokemon Essentials uses Nintendo IP and they have every legal right to demand it be taken down. Fair use only applies to parody and very small selections of an IP for criticism. Even fanfiction is not legally protected.

According to the link that Mika posted though, transformative works have fallen under the category of Fair Use, particularly in several U.S. Supreme Court cases:

Quote:The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.... A key consideration in recent fair use cases is the extent to which the use is transformative. In the 1994 decision Campbell v. Acuff-Rose Music Inc,[11] the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use.[12] Before the Campbell decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward a Fair Use Standard.[9] Blanch v. Koons is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting.[13] Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.

If there's no commercial gain, just art for the sake of art -- or education, as some could argue that Pokemon Essentials would be (archiving sprites, teaching programming skills) -- such as would be the case with fanart, fanfic, and even fangames, then by the precedent set in the Supreme Court, it would be Fair Use.

That is false. You can't just steal intellectual property and claim you transformed it. Otherwise putting a Pikachu on a T-shirt and selling it would be fair use. It's not. Fair Use is not a magic wand.

Transformative usually means a whole new medium, or a transformation that makes a statement (parody), or using intellectual property as a new type of building block (sampling a song for a remix). The purpose of the IP will have to change. We went from a game to a game

Look at the examples linked: a parody and a piece of art the court considered "banal." http://www.artistrights.info/blanch-v-koons/ (and a controversial case anyway). 

Pokemon: PETA Version is fair use. Pokemon Essentials, a tool for making near-clones of Nintendo's games, is not. Any court would rule Essentials is not fair use. Anything set for distribution, compared to personal use, is much less likely to be considered fair use.

We should not fool ourselves that we have any legal rights to use Nintendo/Game Freak/TPC intellectual property to make fangames for distribution. That's a dangerous and factually incorrect attitude. 

It's a cultural battle, not a legal one. Fangames and fanfiction received tolerance in the past because it encourages fans to make their fanaticism a bigger part of their life, to go to cons with like minded people, to spend money on IP merchandise. 

If you want to make a change in Nintendo's behavior, my recommendation is to set a good example by admitting the legal standing of fangames, good behavior of never receiving monetary compensation or tainting the brand with bad associations, and writing respectfully to Nintendo and telling them of a time when a fangame encouraged you to get deeper into Pokemon (ie spend money). 


We can grumble about their decision, 'cause it does suck, but don't lie to yourself.
Current project:
http://fringehikers.com/
Tabletop RPG PokeRole: http://pokemonuranium.co/forum/showthread.php?tid=789
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#34
(08-29-2018, 10:38 AM)Iron Wrote: If you want to make a change in Nintendo's behavior, my recommendation is to set a good example by admitting the legal standing of fangames, good behavior of never receiving monetary compensation or tainting the brand with bad associations, and writing respectfully to Nintendo and telling them of a time when a fangame encouraged you to get deeper into Pokemon (ie spend money).

Would Nintendo or - to be more specific - their lawyers care and listen for that at all though? I'm liking that thought, but at the same time I feel that unless such an action is done on a large scale it's doubtful that we'll achieve anything...
"Anything can be art. Anything can be self-expression. Now take your weapon and run with it"
- Gerard Way

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#35
(08-29-2018, 10:38 AM)Iron Wrote:
(08-28-2018, 10:39 PM)EeveeBailey Wrote:
(08-28-2018, 11:19 AM)Iron Wrote: No, it does not fall under fair use. Pokemon Essentials uses Nintendo IP and they have every legal right to demand it be taken down. Fair use only applies to parody and very small selections of an IP for criticism. Even fanfiction is not legally protected.

According to the link that Mika posted though, transformative works have fallen under the category of Fair Use, particularly in several U.S. Supreme Court cases:

Quote:The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.... A key consideration in recent fair use cases is the extent to which the use is transformative. In the 1994 decision Campbell v. Acuff-Rose Music Inc,[11] the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use.[12] Before the Campbell decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward a Fair Use Standard.[9] Blanch v. Koons is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting.[13] Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.

If there's no commercial gain, just art for the sake of art -- or education, as some could argue that Pokemon Essentials would be (archiving sprites, teaching programming skills) -- such as would be the case with fanart, fanfic, and even fangames, then by the precedent set in the Supreme Court, it would be Fair Use.

That is false. You can't just steal intellectual property and claim you transformed it. Otherwise putting a Pikachu on a T-shirt and selling it would be fair use. It's not. Fair Use is not a magic wand.

Transformative usually means a whole new medium, or a transformation that makes a statement (parody), or using intellectual property as a new type of building block (sampling a song for a remix). The purpose of the IP will have to change. We went from a game to a game

[....]

Again though, cases are skewed toward Fair Use primarily when transformative and not used for commercial gain.  You're right, putting a Pikachu on a T-shirt and selling it would not be considered Fair Use because you're profiting on merchandise.  But to draw Pikachu and screenprint a T-shirt for your own use?  Something completely different, even though you're still using Nintendo's IP -- it's both transformative and not being done to make money.

I would still argue that most fangames would fall under Fair Use by using your very example of how sampling a song for a remix would be using IP as a building block.  Yes, we went from one game to another game... but that remix went from one song to another song.  Perhaps I'm missing something, but I fail to see where the difference lies in your comparison.
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#36
The remix went from a song written by the original artist, to a song where that previous SONG is now a mere COMPONENT.

If you put a copy of Pokemon Gold in your character's room, that is Fair Use.

And don't forget that Twitch met with her own lawyer when she received the takedown notice.


https://twitter.com/search?l=&q=fair%20u...pd&lang=en
https://www.pcgamer.com/illegal-and-impo...fan-games/

Here is some more reading on this exact subject. It's easy to find people (with better platforms and qualifications than Twitter) explaining the subtleties of fair use.
Current project:
http://fringehikers.com/
Tabletop RPG PokeRole: http://pokemonuranium.co/forum/showthread.php?tid=789
"I'd rather not put my dad in a PokeBall."
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#37
….This ongoing conversation has steadily become more and more depressing, I see. Amazing stuff, that is.

I've already drew my line in the sand about this, so all I can really say at this point is you either accept the way Nintendo handles their IP/Fan communities and continue to do business with them, you don't and don't, or have to adapt to the reality regardless.

On the subject of legal battles, I would recommend against that STRONGLY, unless you happen to have deep enough pockets and as many connections as a big business like a game corporation has. Even if you have a strong case to stand and fight on, if the other side has better lawyers and more resources than you, its highly unlikely you'd win any case, bar elaborate means or act of god. Losing the legal battle would also set a Legal Precedent against Fan GameContent to boot, which would give Nintendo and other corps all the where withrawl they need to start the mother of all witch hunts against those that 'hurt' the bottom line, or do something they don't like with their IP (Like art and stuff). Bottomline, its a bad idea.
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#38
I recall reading the PC Gamer article when Uranium came out and subsequently got taken down; it definitely offers a good look at both sides of the debate.  And I can definitely see where a fangame such as Uranium would fall in a gray area of whether or not it would actually be considered fair use should it actually wind up in a legal battle (which I'm not suggesting we try either... if the big N were to come after us again, it would be difficult and risky as hell for us to try to fight corporate lawyers).

I guess the part that I'm getting tripped up is the fact that, to me, Pokemon Uranium and other similar fangames are essentially a very close parallel to the remixed song -- it uses assets of the canon games, yes, but they generally do so in order to tell stories that are different from what the canon series offers.  There is pretty much no chance that Game Freak will develop a region and story that centers on nuclear meltdowns and radioactive Pokemon, especially in the wake of the Fukushima disaster.  Uranium uses some of the assets and a basic outline (defeat 8 gyms, go for the championship), but the overreaching story is new, as well as a new elemental type and moves, a majority of Pokemon being new designs, etc.

To me, this is far more transformative than if someone were to, say, recreate Sun and Moon on RPGMaker.  I have no doubt that doing so is possible; frankly, my cheapskate self would grab that up in a heartbeat given half a chance.  But to me, that would very clearly be copyright violation and DEFINITELY not be fair use, as it basically steals the game and renders the need to buy a 3DS and the official carts completely moot.  I have heard of games that basically recreate one of the canon games, perhaps with a few minor tweaks -- there's a remake of Black and White that comes to mind, though the name escapes me right now -- which I look at as an irrefutable example of IP infringement which Nintendo's lawyers would probably have every understandable right to shut down.

All in all though, I still hold with the overall message in the PC World article.  Even if there wasn't what I feel like is a considerable gray area when it comes to fangame development, the end result is that it's a display of fans' passion and appreciation for the franchise -- and can even help bring greater awareness and enthusiasm to the main series -- and shutting down these games is A) pointless because people will still make them anyway, and B) ultimately harmful to the company and its franchise by alienating fans.  Shutting down Essentials was the tipping point for several people here in this forum (probably across other fan communities as well), and while a small handful of people on one quiet fangame forum probably won't mean much to Nintendo right now.... the harder they push and the more people they turn away, they'll eventually start feeling that somewhere, whether it's their pocketbooks or social media backlash.
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#39
Are they perhaps VoltWhite and BlazeBlack? (Those are the only unoffical "remakes" I can think of) and the implication Iron made of being limited to mentioning the ip doesn't really sound right...
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#40
(08-30-2018, 02:05 AM)EeveeBailey Wrote: All in all though, I still hold with the overall message in the PC World article.  Even if there wasn't what I feel like is a considerable gray area when it comes to fangame development, the end result is that it's a display of fans' passion and appreciation for the franchise -- and can even help bring greater awareness and enthusiasm to the main series -- and shutting down these games is A) pointless because people will still make them anyway, and B) ultimately harmful to the company and its franchise by alienating fans.  Shutting down Essentials was the tipping point for several people here in this forum (probably across other fan communities as well), and while a small handful of people on one quiet fangame forum probably won't mean much to Nintendo right now.... the harder they push and the more people they turn away, they'll eventually start feeling that somewhere, whether it's their pocketbooks or social media backlash.

I definitely agree with this.
Current project:
http://fringehikers.com/
Tabletop RPG PokeRole: http://pokemonuranium.co/forum/showthread.php?tid=789
"I'd rather not put my dad in a PokeBall."
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