Legal safety of the new project

[MirceaKitsune]

So I discovered this project from an article on how Nintendo is assaulting fangames around the internet. Needless to say that's nothing new... though it does upset as well as amaze me never the less. Considering this has already happened to Pokemon Uranium, and it no doubt will happen again, I imagine this is one of the things that needs to be most thoroughly thought of: A project that's constantly at risk of legal harassment is not bound to have a long and happy life. For now, I mostly had two questions in this regard:

First of all: Are the developers prepared to defend themselves once Nintendo sends its next Cease & Desist order? In 99% of cases, when a fan game receives any kind of legal threat from a company, it's immediately nuked out of existence by the developers. Although this understandably happens because everyone will say "some silly game is not worth the risk of finding myself in a lawsuit", I really think it's time we see someone who fights back! Hosting the website in a country where Nintendo doesn't have legal influence is a start... also I think fair use is seriously not brought up enough when it comes to fan games!

And my second question was: I know that Pokemon Uranium uses original characters and art. This means that any objection is exclusively over the name Pokemon... and maybe similarities to a few specific mechanics if Nintendo is crazy enough to go there. Why still go with the name Pokemon?! Sure: It makes sense to stay connected to the series that inspired it, as well as to gain more popularity. But if the very word "Pokemon" is bound to bring in legal trouble, is it really worth sticking to it and not going fully original?

[ScarletZephyr]

My knowledge on legal matters is a very iffy, but doesn't Pokemon Uranium fall under the Fair Use Act as a parody? As long as no resources are ripped off from the actual games and that Uranium strays away from using canon Pokemon (that means removing stuff like Gliscor), which can be used under a trademark infringement claim, Uranium is relatively safe. Also, Uranium is a completely free game, which would make it harder for Nintendo to pursue under the DMCA.

Again, my legal knowledge is extremely limited so please don't hesitate to correct me.

[MirceaKitsune]

My knowledge on legal matters is a very iffy, but doesn't Pokemon Uranium fall under the Fair Use Act as a parody? As long as no resources are ripped off from the actual games and that Uranium strays away from using canon Pokemon (that means removing stuff like Gliscor), which can be used under a trademark infringement claim, Uranium is relatively safe. Also, Uranium is a completely free game, which would make it harder for Nintendo to pursue under the DMCA.

Again, my legal knowledge is extremely limited so please don't hesitate to correct me.

That would be the normal situation. Sadly the project already received attacks from Nintendo and went down once. This is why I think using the word Pokemon might be a bad idea.

Indeed I think fair use might apply (at least somewhat) to fangames. Problem is that, even if this is the case, no one wants to risk getting into a lawsuit with Nintendo to prove it. In practice, I don't think they'd really pursuit everyone in every part of the world over some fangame, especially if it's not used commercially... they don't really need to however, since the threat itself scares most people into taking things down regardless.

[Iron]

Fair use cannot defend a fangame. It's not a magic phrase to get off scott free. Uranium developers have no legal right to use Nintendo's intellectual property.

The power of the name "Pokemon" is in the branding. Uranium would never have received 2 million downloads without that name, no matter how similar it was in essence. Twitch and JV made the game because they love the world of Pokemon and wanted to make a tribute to it.

Our current devs would be able to change the names, I suppose, but that would clearly not be the will of the original devs. And as an underground game, what's the point?

This was brought up several times on the old forums and the devs always answered in this vein.

Tuxemon is a really cool idea, but I think Uranium probably missed its chance to be a FOSSy game 9 years ago when development started.

[Spiritmon]

I dont have much to say, just Nintendo its a bunch of bastards to take down the creativity of the fans of the series. They do the same with so many projects. The fan game of Metroid Aniversary was take down by nintendo, and other examples. For now, everyone think the Pokemon Uranium is dead, i hope they still think that, then the game will be safe, at least for a time. Nintendo cant hunt and they think not exist.

[Lord Windos]

I dont have much to say, just Nintendo its a bunch of bastards to take down the creativity of the fans of the series. They do the same with so many projects. The fan game of Metroid Aniversary was take down by nintendo, and other examples. For now, everyone think the Pokemon Uranium is dead, i hope they still think that, then the game will be safe, at least for a time. Nintendo cant hunt and they think not exist.

While I don't like their overly defensive stance on their IP, they DO have a right and legal imperative to go protect it. If they don't, they many, many more people would attempt to produce Pokémon fangame, for profit or not. Since mass quanity does not equate to quality, a lot of shitty games would tarnish the Pokémon IP, potentially decreasing the sales of Gamefreak's games.

Like or not, if Nintendo were right bastards with their IP, it might encourage other to try and rip them off. Wish their was some middle ground to negotiate with them, though, so that this game is not constantly under the threat of CoD and D o D.

[MirceaKitsune]

While I don't like their overly defensive stance on their IP, they DO have a right and legal imperative to go protect it. If they don't, they many, many more people would attempt to produce Pokémon fangame, for profit or not. Since mass quanity does not equate to quality, a lot of shitty games would tarnish the Pokémon IP, potentially decreasing the sales of Gamefreak's games.

Like or not, if Nintendo were right bastards with their IP, it might encourage other to try and rip them off. Wish their was some middle ground to negotiate with them, though, so that this game is not constantly under the threat of CoD and D o D.

Technically it is their IP, and I'm not denying they have the legal right to defend it (arguments over fair use aside). That doesn't mean that abusing this right is an okay thing to do however. Imagine it as a bunch of kids occasionally playing in the corner of someone's lawn: One has the right to tell them "stop running so close to my lawn before I call the police", but does doing so without a good and direct reason make them less of a jerk?

I also don't think that Nintendo is required to do these things, which is an argument I see commonly used. If anyone wants a good example of someone who doesn't, take Sega... which is pretty much the opposite of Nintendo: As far as I'm aware, they have never once sent a C&D order for any Sonic fangame! Has this ever caused them to lose their IP? Has this ever affected their sales negatively? They're doing perfectly fine... and Nintendo would too, if it wasn't made of such horrible people.

[EeveeBailey]

The part that I really don't understand though is how Nintendo is willing to drop the banhammer on fangames like Uranium, and yet they seem perfectly fine with fanart of their IP, fanfic of their IP... seriously, go to DeviantArt or FanFictionNet and search "Pokemon" -- I was mindblown at how many search results came up!

At the very heart of it all, isn't creating an interactive story/art tribute like a fangame fundamentally no different than writing fic or drawing art?  In all three cases, a fan is repurposing Nintendo's IP to suit their artistic whimsy (without Nintendo's express written permission, at that!).  So how is it that Nintendo then allows fanart and fanfiction to exist, but not fangames?  Legally right or wrong, it's a double standard.

[Harmony]

The part that I really don't understand though is how Nintendo is willing to drop the banhammer on fangames like Uranium, and yet they seem perfectly fine with fanart of their IP, fanfic of their IP... seriously, go to DeviantArt or FanFictionNet and search "Pokemon" -- I was mindblown at how many search results came up!

At the very heart of it all, isn't creating an interactive story/art tribute like a fangame fundamentally no different than writing fic or drawing art?  In all three cases, a fan is repurposing Nintendo's IP to suit their artistic whimsy (without Nintendo's express written permission, at that!).  So how is it that Nintendo then allows fanart and fanfiction to exist, but not fangames?  Legally right or wrong, it's a double standard.

It's because Uranium is way more prominent than a random piece of fan art.

It seems to me that Nintendo is trying not to be the big bad company that strikes down all fan work (I'm looking at you, Disney), but in order to keep their trademarks, they're legally obligated to protect their intellectual property. As in, if they didn't go after any fan works at all, they could end up losing their legal right to protect their brands against potentially damaging infringement. So they go after high-profile fan works as a way of publically showing that they're protecting their IPs.

Trademark law is kind of bullshit.

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I also don't think that Nintendo is required to do these things, which is an argument I see commonly used. If anyone wants a good example of someone who doesn't, take Sega... which is pretty much the opposite of Nintendo: As far as I'm aware, they have never once sent a C&D order for any Sonic fangame! Has this ever caused them to lose their IP? Has this ever affected their sales negatively? They're doing perfectly fine... and Nintendo would too, if it wasn't made of such horrible people.

It is truly and honestly a legal requirement. I can only speculate why Sega doesn't do it, but it could be that fan works for their properties tend to either not get the same publicity that Nintendo fan works do, or are clearly parodies that can claim legal protection. It could also be argued that Nintendo might not strictly need to go after fan works, but are doing so just to err on the side of caution.

Nintendo's not the enemy here. Heck, they actually seem pretty lenient to me when you consider how many fan projects they've left alone, even ones that are actually making money off of Nintendo IPs.

[Lord Windos]

The part that I really don't understand though is how Nintendo is willing to drop the banhammer on fangames like Uranium, and yet they seem perfectly fine with fanart of their IP, fanfic of their IP... seriously, go to DeviantArt or FanFictionNet and search "Pokemon" -- I was mindblown at how many search results came up!

At the very heart of it all, isn't creating an interactive story/art tribute like a fangame fundamentally no different than writing fic or drawing art?  In all three cases, a fan is repurposing Nintendo's IP to suit their artistic whimsy (without Nintendo's express written permission, at that!).  So how is it that Nintendo then allows fanart and fanfiction to exist, but not fangames?  Legally right or wrong, it's a double standard.

It's because Uranium is way more prominent than a random piece of fan art.

It seems to me that Nintendo is trying not to be the big bad company that strikes down all fan work (I'm looking at you, Disney), but in order to keep their trademarks, they're legally obligated to protect their intellectual property. As in, if they didn't go after any fan works at all, they could end up losing their legal right to protect their brands against potentially damaging infringement. So they go after high-profile fan works as a way of publically showing that they're protecting their IPs.

Trademark law is kind of bullshit.

---

I also don't think that Nintendo is required to do these things, which is an argument I see commonly used. If anyone wants a good example of someone who doesn't, take Sega... which is pretty much the opposite of Nintendo: As far as I'm aware, they have never once sent a C&D order for any Sonic fangame! Has this ever caused them to lose their IP? Has this ever affected their sales negatively? They're doing perfectly fine... and Nintendo would too, if it wasn't made of such horrible people.

It is truly and honestly a legal requirement. I can only speculate why Sega doesn't do it, but it could be that fan works for their properties tend to either not get the same publicity that Nintendo fan works do, or are clearly parodies that can claim legal protection. It could also be argued that Nintendo might not strictly need to go after fan works, but are doing so just to err on the side of caution.

Nintendo's not the enemy here. Heck, they actually seem pretty lenient to me when you consider how many fan projects they've left alone, even ones that are actually making money off of Nintendo IPs.

Well spokeon harmony. What are those IP s that Nintendo has left fertile and unmolested, by the way? I thought they applied the banhammer to almost everything notable...