As some of you may have heard, the highly anticipated fan game Mother 4 has just announced that they’ve decided to rebrand the game. This was done mostly due to the controversial take downs of AM2R and Pokemon Uranium by Nintendo last year. As a fellow Nintendo fan game, Mother 4 had plenty of reason to believe that it not only could, but likely would also be taken down by Nintendo.
“But it’s a free game! They’re not making any profit! So it should be fine, right?” Some of you may be thinking. As others may recall though, so were both AM2R and Pokemon Uranium. A common misconception about copyright and IP law is that to take legal action, the infringer (in this case, the fan games) has to be making a profit before the IP holder can take legal action–that’s not true at all. In what Josh Walters (attorney, law professor, advisor and chief of DeviantArt) calls “The Law of the Playground” in a panel he hosted on copyright laws in fandom at San Diego Comic Con 2012, there’s a slight difference in actual law and what’s written on paper. To paraphrase what he says, written law dictates that an IP holder can sue for anything as minor as fan art, regardless of its quality or whether or not it made profit, if they want to. However, the “law of the playground” dictates that, essentially, (and again: I’m paraphrasing so as to not quote an hour long lecture) if you do that then you’re going look like a petty jerk and likely suffer a barrage of bad press. Therefore, in cases like fan art, most IP holders go beyond not caring (from a legal standpoint) about whether or not you do it, but some even encourage it (after all, why wouldn’t they? Free advertising).
There is only, however, a certain degree to which the general public and companies tend to consider these minor infringements “acceptable.” Fan art? Acceptable–nay, often encouraged. Ripping movies from online and selling them for cheap? Not acceptable–might even get you in some degree of legal trouble depending on the extent to which you did it. Generally, the perception seems to be based on how much effort in the infringement that the infringer placed. Ripping a DVD or Blu-Ray? No effort or artistic value whatsoever. Making a fan game? Years worth of effort and lots of artistic value. I can’t confirm this, but I’d place a large bet that the the amount of income (if any) the infringement makes would also tip the scale in how acceptable it would generally be considered as well.
So how does this all tie into Mother 4? Because Nintendo is well-known to fiercely protect their IPs. And why wouldn’t they? They run a much higher risk than any other major game company for becoming a generic trademark. A generic trademark is when your brand name becomes so synonymous with the product that the name of the brand is usually used in place of the name of the product–for example, saying Q-tip for cotton swab, Aspirin for pain reliever, Yo-Yo for spinning toy, and even App Store for mobile gaming market. When your brand becomes a generic trademark, it essentially enters the public domain–therefore making it exceedingly difficult to take legal action if someone uses your brand name in a way you don’t want them to.
Being the owner of some of gaming’s largest and most recognizable IPs, it should be no wonder why Nintendo might be scared of becoming a generic IP. They had a particularly bad scare in the 90’s, when they almost did become a generic trademark synonymous for video game console. They’ve become noticeably more fierce about defending their IPs since then–from taking down fan games (which, as I already explained, are considered copyright infringement in a court of law) to suing Pokemon themed parties. They have to be fierce about it–otherwise, as the most recognizable brand in video gaming, they and some of their IPs might come close to being generic IPs again. In return for their fierce defending of their IPs, they’ve had a lot of bad press about it, and certainly lost the faith and respect of several of their fans–especially those who loved some of their games so much that they wanted to express that love in the medium of another game, who will likely never think of Nintendo in the same way the once did again.
Some of you may be wondering if Mother 4 would still be affected by this because it does, after all, still have an original setting, original characters, etc. Point blank, yes, it is. They’re still using the Mother IP in the title, they revealed that they were putting Mr. Saturn in the game, and likely many more such concepts original to Mother. An IP doesn’t necessarily have to be the brand itself–it can also be identifiable hallmarks of the brand that make it itself. This can be anything from an aesthetic, concepts/characters/places existing in works of fiction, or even materials used in production. For example, Tiffany Blue. Yes, the color. It’s arguably the biggest hallmark of the Tiffany brand, and therefore, even using that blue is considered copyright infringement if you’re using it in a way when it can be confused with their brand. In other words, if you want to paint your house Tiffany Blue, that’s fine. If you want to sell your product in a Tiffany Blue box, then there might be a problem. If your product is jewelry, then you have a lawsuit on your hands if Tiffany Co. ever finds out. In this scenario, Nintendo is Tiffany Co. and Mother 4 is the artist packaging their jewelry in a Tiffany Blue box.
Luckily, judging by the trailers and the information we’ve been given about the game up until now, this won’t have an astronomical affect on the game. To quote the OP of the AMA, “This is still the story of Travis and his friends fighting the mysterious Modern Men. Leo still lights his smokes with paranormal fire.” In other words, although there will certainly be noticeable changes, the game is still itself. It will have a different name, but it’s still the same story. Whether or not this will affect gameplay is yet to be said, as far as I can see.
If they were to say that this game was inspired by Mother and drop some subtle references here and there, then legally speaking, that’s fine. Case in point: Undertale, which does this many times. Therefore, if Mother 4 took this approach by removing all the explicit uses of Mother/Earthbound IPs, they’d be in the clear, and unable to be touched by Nintendo. On the other hand, by keeping its name and the Mr. Saturns (among other characters/concepts original to Mother) they would put themselves at a likely risk of being taken down by Nintendo. As not only a huge fan of the Mother series, but a big fan of the work that the Mother 4 team has been showing in their game, I’d really hate to see this happen. Therefore, their protecting themselves from copyright infringement by rebranding and joining the ranks of games like Undertale and LISA as Mother-inspired games, they’re making a good decision not only for themselves, but for their fans who will want to play the game and see to it that it’s preserved. Nobody, least of all them, wants to see years worth of effort go to waste. That’s why rebranding is the best thing Mother 4 could’ve done for themselves and their fans right now. I, for one, am no less excited for this game than before.