Dear Nintendo: Here Are Some Ways You Could Be A Little More Cool, Man

We were just talking through yet another instance showing that Nintendo hates its own fans, in this case regarding a story about a cool fan-made web game that was essentially a 2D Mario Bros. battle royale game. In that post, I mentioned that Nintendo's lawyerly ways have become so infamously legendary as this point to be the punchline to every announcement for a fan-game that in any way involves Nintendo properties. The battle royale game is obviously not alone in this. And, given the many other options at its disposal, it remains something of a mystery why Nintendo continues to insist on playing the jerk at every turn.

And I'm not the only one wondering, it seems, as Kotaku has picked this theme up and written a decent post asking why Nintendo acts this way as well.

Nintendo needs to read the room here and realise there’s a big difference between a pile of pirated 3DS cartridges at a market stall and a loving, non-commercial Pokémon game made by fans, for fans. These games are tribute, not competition. Mario Battle Royale, the 100-player take on Super Mario Bros.that had to change its name last week to DMCA Royale in honour of Nintendo’s legal threats, was never going to cannabalize sales of Super Mario Maker 2. Likewise, Breath of the NES, another recent and promising fan project that was turning Breath of the Wild into a retro top-down Zelda game, was never going to stop a Nintendo fan from preordering Link’s Awakening.

This paragraph does a decent job of pointing out what should be obvious to Nintendo: fan-games are not a threat. Instead, fan-games are the expression of fandom and nothing more. If anything, fan-games only enhance the market for a gaming company.

But, wait, you say, doesn't a company like Nintendo have to enforce its IP rights or lose them? Kinda-sorta, and Kotaku makes this same overly simplistic mistake.

It’s easy to blame these lawyers, as though they’re out for nothing else than to spoil our fun, but the reality is that they have a job to do. In their eyes, enforcing Nintendo’s copyright means enforcing it, because were Nintendo to get slack and start letting every little product and service use their characters without permission, then (or at least the legal theory goes) it gets harder to defend the company’s ownership of them should they need to take a bigger product or service to court.

I can't be certain, but this reads like someone that is confusing copyright and trademark law. In trademark law, there is a requirement that the holder enforce their trademark when the potential for infringement or confusion exists. If they do not, they risk allowing their mark to become generic. In copyright law, the rightsholder has more options. It is true that the failure to protect a copyright does risk interpretation in future litigation of an implied license being offered, but it's far less black and white compared with trademark law. In addition, rightsholders like Nintendo have tons of options to officially sanction and cheaply, or even freely, license a work so as not to risk an implied license.

To its credit, Kotaku makes this point.

Better yet, Nintendo could take a look at what some of their biggest competitors are doing in the same space. For years now, a dedicated group ofHalo fans have been building an all-new game called Installation 01. The project eventually attracted the attention of Microsoft, and do you know what Microsoft did?

They didn’t send in the lawyers. They didn’t get the game shut down. They met with Installation 01's creators and worked out a deal. So long as the fan game is released free of charge and displays this text:

"Installation 01 is a completely separate entity from 343 Industries and Microsoft Studios and neither 343 Industries nor Microsoft Studios is formally funding or partnering with this project."

Nintendo could and should do exactly this sort of thing. It would take a bit of work, of course, but the boon in allowing the fan community to thrive and create works of love alongside Nintendo properties has to far outweigh whatever that extra workload would be. At the very least, it would keep writers like me from pointing out to the gaming public that Nintendo hates them whenever I can. It would build a more enduring relationship with fans, it would make for a great PR story, and it would allow for an explosion in Nintendo branding to flood gaming fandom. All of these would represent good business developments for Nintendo.

If only it would try to stifle every Nintendo-y instinct it has and try to be just a bit more human and awesome to its fans. Oh well.