Quote:Edit: Come to think of it. I think you may have just misunderstood what I was talking about when mentioned giving Nintendo credit and took it the wrong way. Yeah, never jump to conclusions like that! Doing so can cause problems! I learned that the hard way!
Yeah, you did misunderstand. ;) Allow me to clarify.
I don't know if you are one of them, but some fangame authors think that they're doing Nintendo some kind of favor by plastering their logo on the front of their game, or otherwise making it look like Nintendo is responsible for the game. This is trademark infringement, as is anything that might confuse people into thinking that Nintendo is somehow involved in the fangame,
unless you include a prominent disclaimer saying that Nintendo is
not affiliated with the game in any way and does
not endorse it in any way.
Quote:But they do own the rights to the franchise! Which is why I have to make sure that people know that the franchise itself isn't mine, it's Nintendo's.
This is not true from a legal standpoint. The "rights" you are referring to are copyright monopolies. Copyright is about who is allowed to distribute a creative work and has nothing to do with giving credit. Your only defense with regard to copyright (other than explicit permission, which you're not going to get) is fair use.
Quote:Nintendo needs to be to be credited for their hard work of creating such an awesome franchise as The Legend of Zelda.
I would also like to point out: Nintendo is a corporation, not a person, and it was people working for Nintendo who were responsible for the actual work. So morally, it's not Nintendo who deserves credit for Super Mario Bros, but the people who actually worked on it. I honestly couldn't tell you who those people are, for the most part.
Quote:So you're basically saying that I should just do the exact thing that will set Nintendo off and DMCA my fan games, by claiming copyright?
For the record, you
do hold copyright on any parts of the fangame you authored (i.e. most of it), unless you explicitly dedicated it to the public domain. Copyright is automatic.
DMCA takedowns are with respect to copyright infringement, i.e. using any copyrighted work without permission and without a fair use defense. As I explained, copyright infringement has nothing to do with whether you give credit or not. It also has nothing to do with whether or not you "claim" copyright.
If anything, the pattern of games that were taken down by Nintendo is games that:
1. Are very similar to (if not outright direct clones of) official Nintendo games (this is pretty blatantly copyright infringement, as it is not transformative and therefore is not likely to be considered fair use); or
2. Use Nintendo trademarks in a way that suggests that Nintendo is somehow affiliated with the project.
AM2R is an example of #1 (direct clone of Metroid II), and SMBX is an example of #2 (used the "supermariobros.org" domain).
Quote:3) My fan concepts are always original! I don't make copies of games like say Ocarina of Time, Majora's Mask, or Skyward Sword, games that already exist!
This is definitely one of the things you should do; it gives you a fair use defense that I think would have a really good chance of holding up in court. I go further by including a notice in a readme arguing fair use up-front:
Kitten Command README Wrote:COPYRIGHT AND FAIR USE NOTICE
This game makes use of certain copyrighted works without the permission
of their copyright holders. These are small components of Super Mario
Bros 3, Super Mario Bros, the Japanese Super Mario Bros 2, and the NES
port of Contra; as well as the Mario Techno Remix by Paul Soh. More
details about these works can be found in data/LICENSES.
United States copyright law includes the doctrine of "fair use", which
allows use of copyrighted works without permission of the copyright
holders. See 17 U.S.C. ยง 107 for details. Unfortunately, fangames have
not been specifically tested in court, but it is my firm belief that my
use of these copyrighted works is fair use, based on the following
points:
1. Kitten Command is distributed entirely non-commercially. To be
perfectly clear, this is not a primary foundation for my claim of
fair use. I believe the use would still be fair use if it was
commercial. Nonetheless, the fact that the use is non-commercial is
worth mentioning.
2. The purpose of Kitten Command, as a whole, is entirely different from
the purposes of the copyrighted works being used. Put another way,
the use is transformative. As a result, the use does not diminish the
potential market for or value of any of the copyrighted works used in
any way. Kitten Command is not a replacement for any of these works.
3. Only the portions of the copyrighted works needed for Kitten Command
are included in this distribution. The total amount of Super Mario
Bros 3, Super Mario Bros, the Japanese Super Mario Bros 2, and the
NES port of Contra used is small compared to the whole of the
respective works.
4. The copyrighted works used are only small portions of Kitten Command
as a whole.
Anyone wishing to redistribute Kitten Command has my permission to do
so; you will find that all of my work is released under libre licenses.
However, if you live outside of the United States, please check up on
the laws of your country regarding things like fair use and/or fair
dealing, as different jurisdictions have different rules regarding this.
