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Another Mother 4 Remake: Uranium Version

Suing is Magic: Why Shigesato Itoi Probably Won't Save MOTHER 4 From Takedowns

Law is but a moment, a single grain of sand

Submitted by kmeisthax on Tue, 08/16/2016 - 19:23 in Rants

A year ago (modulo some months) I made a particularly flippant comment about how, given it's slavish devotion to a specific brand of quirky humor and subversiveness; UNDERTALE could just have easily been passed off as a fan-made sequel to the MOTHER series it so heavily cribs from. In video games, we use the term "spiritual successor" to indicate this sort of thing. Part of my reasoning is based on the fact that the MOTHER series itself doesn't have a particular shared thread of character or setting. "MOTHER" seems to mean more "JRPG written by Itoi" in the same way that "Azumanga Daioh" was originally intended to mean "Comic book written by Azuma".

But another part of that reasoning - or at least, why I didn't feel disrespectful making such a ridiculously reaching comparison - was a 2011 interview between Itoi, Iwata, and other Nintendo staff for Brutus Magazine. The topic of the interview happened to be about the prospect of a 4th MOTHER game, something Itoi himself isn't willing to make due to the stress of getting MOTHER 3 out of the door. Itoi somewhat flippantly remarks that he'd rather play a MOTHER 4 than make it; and argued that if someone had made a spiritual successor to the game, he'd be perfectly willing to personally consider it MOTHER 4.

While I had read it as a personal endorsement of someone making a spiritual successor (I would have some kind of fangasm if Itoi were to ever play UNDERTALE, even if he didn't like it); other people have taken it as a legal endorsement of fan sequels. You see, MOTHER 4 isn't just a hypothetical MOTHER sequel contemplated by a bunch of aging Nintendo executives but an actual fan project to create an unauthorized sequel to the MOTHER series. With a string of high profile Nintendo of America issued DMCA takedowns to other amazing fan projects like AM2R and Pokémon Uranium, it's natural to worry about the fate of a MOTHER fan project that's so far looking to be high quality, professional, and fantastic. And that's where the Itoi comment comes in, as some fans have looked at it as a kind of statement that MOTHER 4 is somehow immune from the basic realities of fan works in a copyright-respecting legal climate.

Before I begin I should point out that there is one possible hope that most people seem to have ignored. You see, Nintendo itself - just the main company, not it's subsidiaries - is a Japanese company. And in Japan, the legal climate towards unlicensed fanworks is far different from other countries. The Japanese "indie" scene for games (aka "Doujin soft") is far more intermingled with unlicensed fanworks than in other countries. Many companies turn a blind eye to people actively selling unauthorized fanworks in real-life conventions for this sort of thing; whereas noncommercial projects elsewhere are routinely hit with DMCA takedowns or worse. So it's with a heavy heart that I should point out that Nintendo has foreign subsidiaries with power-of-attorney and none of this pesky sentimentality towards fan expression that seems to pervade Japan.

Right. With that out of the way, let's discuss the ownership structure of some of Nintendo's various franchises. MOTHER is a series concieved and produced by Shigesato Itoi with development assistance from a number of companies including Nintendo, HAL, APE (now Creatures), Brownie Brown, etc. Naturally this means that the rights to the game software itself as well as the scenario of the games will share copyright ownership between Itoi, Nintendo, and possibly even some of the development companies in certain cases. The crux of this theory relies on the legal fiction that joint ownership of copyright requires universal agreement before legal action can be taken, and that Itoi wouldn't authorize such an action.

I don't even need to actually start referencing statute here, which is good because I can't read Japanese-dialect legalese anyway. (International harmonization treaties pretty much ensure that an open-and-shut case is open-and-shut in every jurisdiction, anyway.) The idea that copyright owners have to personally authorize each and every individual enforcement action is so hilariously stupid on it's face. It assumes that lawyers don't exist, and/or that joint owners can't have their own lawyers. Even if they had to agree, they still would just agree to hire a single legal firm who would then be trusted to actually enforce their marks. The system proposed to represent how copyright law works is so unworkable as to render the law moot and unenforceable.

For a proof by example, just look at the Pokémon series again. It's ownership has always been shared between multiple companies - Nintendo, Game Freak, and Creatures in the beginning; with The Pokémon Company formed some time later. All four companies still hold ownership over some aspect of the resulting franchise; and tellingly enough, Nintendo's overseas branches are still perfectly able to enforce legal action against projects and entities which it believes to be infringing on it's copyrights and trademarks.

A handwave used in this legal theory is the idea that Nintendo can't protect the MOTHER franchise because they haven't used it before. This seems to be coming from two places. First, the trademark abandonment myth (turned on it's head); second, the way that some licensees' contracts actually work. The first misconception seems to believe that Nintendo hasn't made use of the MOTHER franchise nor the EarthBound mark and therefore cannot enforce their rights. This is untrue, not only because it's not what happens in the law, but also because it's factually inaccurate. Nintendo has released EarthBound and EarthBound Beginnings (the NES one, called MOTHER in Japan) as re-releases for the Wii U and Nintendo 3DS.

The second misconception comes from the way that certain movie licensing deals regarding a few certain Marvel properties and FOX happen to work. In many cases, movie rights to a franchise get sold-off wholesale with a provision that the deal expires if a certain amount of time has passed since a film has been made using those rights. That's why FOX continues to churn out garbage Fantastic Four and X-MEN films, because they're profitable enough and the studio would be poorer without owning that part of the Marvel Cinematic Universe. This is not how copyright works in general. In theory, copyrights can expire after a fixed period; in practice, Congress and WIPO have decided to never allow copyrights to expire for as long as Disney is willing to sponsor Senators and Representatives to pass term extensions.

And think about it this way: How bone-headedly stupid would Nintendo have to be in order to agree to develop a JRPG in the late 80s with all rights devolving to Itoi if they stopped releasing sequels? And if they did, Nintendo would not have been willing to let the franchise sit on ice after the third one, especially since it's turbulent development history and release showed that the series worked much better with cheaper-to-make 2D graphics. If anything, Nintendo maintaining some level of ownership over MOTHER makes it easier for them to let go of the franchise and just keep selling re-releases rather than force new games to be developed just to keep their hands on it.

The "Fresh IP" part of the theory only holds true in one very limited circumstance - Nintendo of America is focusing efforts on policing the marks they are currently marketing games around. For example, the MOTHER 3 Fan Translation never got any legal harassment from any of Nintendo's foreign branches, and it's main translator actually works at Nintendo now. But even then - for every AM2R or Pokémon Uranium they do take down; they are missing three or four other games and ROM hacks. The sample size of what actually does get taken down is so small that I could just as easily say they only take down things which wind up in games press. Keep in mind that the two games I'm citing happened to blow up in popularity after their release; and with the increased visibility of EarthBound thanks to VC releases and a certain spiritual successor from 2015, it's unlikely that MOTHER 4 will fly under the radar.

But, let's push that all out of the way. Let's say that Japanese copyright law prohibits owners of joint works from enforcing their rights. Let's say that not releasing a new MOTHER game causes the entire series to enter the public domain, and/or that Nintendo let the rights devolve to Itoi out of what I can only assume is an uncharacteristic level of honor before profits from Nintendo. Even then, what the hell makes you think that Itoi will be the savior of the project if MOTHER 4 gets taken down? Itoi didn't say "Make a MOTHER 4 fangame"; nor has he given his blessing to them. In fact, I don't think he even knows they exist.

In this legal bizarro world, Nintendo of America can still file takedowns and they will have about as much effect as they do today. That is, any copyright lawyer in America would still treat them as valid, and they would do as much to stop the project as they did for AM2R or Pokémon Uranium. That is to say, both released updates after their takedowns, and both are still easy to find despite not having official download links. A depressingly large number of DMCA claims are made on things that the claimnant doesn't actually own. You can count on your hand the number of false DMCA claims that were actually successfully defended against to the point where the claimnant had to pay damages for what is effectively lying under oath. DMCA claims are not death sentences for fan works unless the owner is willing to follow through with additional enforcement. Otherwise, they are a nuisance.

(Before anyone asks, I am aware of the additional legal harassment DoctorM64 received after this rant was originally written and recorded.)

But let's say you get a DMCA from NOA and you, personally, think that they don't have standing to sue. This will never matter unless you actually counternotify, get sued by Nintendo, and actually defend yourself. At which point you are already so far up financial shit creek that a paddle wouldn't even help. Copyright lawyers are the expensive kind of lawyers; and it's a civil tort, so you aren't getting a public defender. While there are a few organizations that will provide legal defense for copyright claims; such as the EFF; those organizations are looking for cases that have a high return-on-investment. In this case, the expected returns are measured in terms of what precedents they can set to change the rules of online copyright; your case will have a terrible chance of yielding anything useful for them.

So, no, I don't expect MOTHER 4 to get better treatment because of an Itoi quote and misinterpretations of copyright law. I will, however, continue to be frustrated and angry with Nintendo when they inevitably start firing off a few ineffectual DMCAs at whatever cool fan project they decide is worth killing. Meanwhile, the better-looking Sonic game coming out of SEGA is literally developed by three teams of Sonic fangame developers because it's probably cheaper than paying Big Red Button to screw up Sonic Boom again.

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Suing Is Magic