In my last post, I talked about the recent copyright and trademark infringement takedown actions initiated by Nintendo against No Mario’s Sky and various other games hosted on GameJolt.
No Mario’s Sky was made in a weekend for Ludum Dare 36. It is a mashup of Hello Games’ No Man’s Sky and Nintendo’s Super Mario Bros. The theme for Ludum Dare 36 was Ancient Technologies. It’s unclear how this game relates to the theme. However, due to the popularity and familiarity of Mario and No Man’s Sky, the game got quite a lot of attention in very little time, and was picked up by websites such as Kotaku and Polygon.
The premise of the game is that Mario is looking for the Princess on an infinite series of procedurally generated 2D Mario worlds. The worlds wrap around a circle, giving them the appearance of planetoids.
Once you’ve satisfied your curiosity on one world, you can summon your spaceship and take off in search of another world. Apart from the color scheme of each world, there’s not all that much to differentiate them, which may be due to the game being developed in just 72 hours, or may be a deliberate commentary on the procedurally generated sameness that many players of No Man’s Sky have complained about.
From a Mario standpoint, the game only borrows the titular character, the goomba enemy, and the basic concept of jumping on platforms and enemies, collecting coins, and hitting platforms from below. No sprite artwork is taken from Nintendo’s games, as all sprites and tiles appear to have been re-created by the ASMB development team, and while the Mario and Goomba characters are recognizable, they are not in any way confusable with Nintendo art assets. There is no brick breaking, no super mario mushroom, no star man, no fire flower. Again, this is likely due to the compressed schedule under which the game was created. Each world plays its own variant of the Super Mario Bros theme music, which is again a re-done composition, not the original music ripped from the Nintendo game.
In short, from a copyright infringement standpoint, this game is in a gray area, but pretty safe, in that nothing is actually copied directly from the Nintendo games. This game is about as much a Mario ripoff as KC Munchkin was a Pac Man ripoff. (Atari successfully sued Philips to stop the sale of K.C. Munchkin, even though the game was not Pac Man, but the case was bullshit and probably would not have succeeded were similar suit brought today.)
From a trademark infringement standpoint, of course, the game clearly is using the identity and behavior of the famed Nintendo mascot, without authorization or permission of Nintendo. If this were a commercial product, it would certainly be liable for trademark infringement. However, this is probably closer to a parody, or a “fan game” or homage. Unfortunately, the latter two concepts don’t exist as legal categories. It might be that the creators could have successfully defended the game as a parody, but that would have involved going to court and rolling the dice to find out whether they could persuade a judge of that. There’s simply no way an independent developer has the time or resources to try to defend what amounts to a weekend’s worth of work against a company the size of Nintendo for what would surely be months or years of litigation.
If ASMB had avoided use of the Mario name, perhaps renaming him something recognizable, like “Mustachhio”, say, and if the music had been done in a way that was recognizably Mario-eque without having the exact same melody, probably Nintendo would not have had any copyright leg to stand on, and the game could have remained as-is. From a trademark standpoint, though, it probably does run afoul of Nintendo’s trademark on the Mario Bros. franchise, given that it uses the Mario and Goomba names and likenesses.
While the game is fairly bland as-is, the concept is certainly fun and held promise. Were the game to be developed further, to better incorporate the Mario characters and play mechanics, it could have been a very enjoyable game.
DMCA’s Sky removes the Mario and Goomba artwork, replacing them with a generic space man and alien, and the music has also been replaced, but otherwise the game is much the same. Interestingly, the jump, coin and 1-up pickup sounds remain recognizably Mario-esque, but again do not appear to be direct rips from original sources.
I suppose Hello Games could also make an IP infringement claim if they wanted to, and force the game to remove the procedurally generated planet hopping, at which point the game wouldn’t have much left in it anymore. Notably, so far at least, they haven’t.
It turns out, though, that when you break down just about any video game into its fundamentals, pretty much every game is based on, or borrows from, concepts that came from some other game. And — this is the important thing that must not be lost sight of — concepts are not subject to copyright. Not even play mechanics are copyrightable. Only actual works are copyrightable.
Of course, copyright is only one branch of Intellectual Property law, and there’s also potentially opportunity for patent and trademark lawsuits to shut down a game that borrows “too much” from a well known existing game.
Despite this, much of the charm of No Mario’s Sky was in its mash-up-ness, and this charm is effectively stripped from it by removing the Mario references. So clearly, the game derives some value from referencing the source material that it is based on. I don’t think that can be denied. I have a harder time seeing how this game harms either Nintendo or Hello, however. It was available for free, not for sale. It isn’t reasonably mistake-able for a real Nintendo game, and if that were a risk it could be prominently disclaimed on the title screen that it was not in any way connected to Nintendo, who retains full ownership of the “real” Mario characters. I see little evidence that the existence of this game or the numerous other Nintendo-IP infringing games done by fans over the years (including ROM hacks, homebrew games, de-makes, and homages) has in any way diminished the Nintendo brand or harmed Nintendo as a business.
The takedown of unauthorized fan games isn’t anything new — it’s just the latest in a string of consistent defenses of Nintendo’s IP rights. It’s clear that Nintendo is aggressive in protecting their IP rights, and have always been. This has been in part due to their corporate culture, but also in larger part due to the nature of IP law.
But IP law isn’t immutable. We could as a culture elect to shape law differently, if we could agree to.
Nintendo’s takedown of videos on youtube and elsewhere, of people playing their games who do not participate in or follow the rules set forth by Nintendo in the “Nintendo Creator’s Program” is ridiculous — it’s not a copyright infringement for me to play a video game, or to talk about a videogame, or to record me talking about a videogame while playing it, and footage of said videogame that I create should legally be my sole creation (while the characters owned by Nintendo and other IP-holders are still retained by those holders).
If I want to make a video of a videogame for purposes of review, criticism, or parody, I shouldn’t have to obtain the permission of the IP rights holders of the videogame, nor should I have to share revenue with them. They earned their revenue already through sale of the game, and did none of the work to produce the video, so why should they be entitled to a share of revenue generated by the video?
Likewise, if I want to make a videogame that references other videogames, much as a work of literature may reference other works of literature, creators should have some right to do so. Exactly how this should work out so that the original creator’s rights are protected and respected isn’t very clear, however.
Ultimately, the power seems to fall to those who have the deepest pockets with which to pay the most and best lawyers. As as a result, the culture, and the game playing public, is poorer for it.