This week in Art Law Journal, another well-established, deep-pocketed media giant goes after the little guy for copyright infringement – in this case, Nintendo and Pokemon creator Game Freak, versus the pair of unknown developers of Pokemon Uranium, a fan-made game that’s been in development for the last nine years.
Last week, Pokemon Uranium debuted after almost a decade of development by a couple of fans obsessed with the Pokemon game. The game introduced 150 new Pokémon alongside existing official Pokémon, plus a new region, a single player story with a full eight gyms to battle through, and online trading and battling – essentially, the same type of game that Pokemon or Nintendo would make.
Pokemon Uranium’s use of Pokemon characters and creation of those that closely resemble the original Pokemon characters is most certainly copyright infringement. As a creator, U.S. Copyright Law affords you certain exclusive rights regarding your creative product. Only the copyright holder has the power to:
- reproduce (i.e., make copies of) the work;
- create derivative works based on the work (i.e., to alter, remix, or build upon the work);
- distribute copies of the work; or
- publicly display the work.
Pokemon Uranium is guilty on two counts – they blatantly copied key Pokemon characters, while also creating their own versions of new characters and obstacles, which is considered a ‘derivative’ work. Under U.S. Copyright Law, a derivative work is a work based on or derived from one or more already existing works. For example, a drawing based on a photograph, an adaptation of a musical play, or a revision of a novel on a website would all be considered derivative works. Unless a creator of a derivative work has a license from the original copyright holder to create said work, then the creator of the derivative work is infringing on a copyright.
Since these new Pokemon and updated obstacles are an adaptation of the originals, and Pokemon Uranium didn’t have any permission from Nintendo to create this derivative work, then Pokemon Uranium can be found liable for copyright infringement.
Nintendo’s Response to Pokemon’s Copyright Infringement
In response to Pokemon Uranium’s copyright infringement, Pokemon and Nintendo issued a takedown notice to Pokemon Uranium, who was forced to comply or face legal action. Nintendo’s action is grounded in both law and general business sense.
From a legal perspective, Nintendo issued a takedown notice to Pokemon Uranium under the standard cease and desist principles. Grounded in intellectual property law, a cease and desist letter is issued extensively in copyright law. The letter asks the perpetrator of illegal activity (in this case, the copyright infringer) to stop what they’re doing, and not take it up again. It’s likely that Nintendo’s lawyers threatened legal action against Pokemon Uranium, and since they likely know that what they made constitutes copyright infringement, they decided to comply.
But there’s another, much more important reason for why Pokemon wants to shut Pokemon Uranium down. You see, fans re-make and make derivative works of their favorite movies, fictional works, and video games all the time – just look at Anaxar’s Star Wars films, a topic we’ve covered and can easily apply here. Generally speaking, these fan works are made all the time. While companies are aware, they just don’t care. Fan works add to the buzz around the work and keep their fans happy. It usually makes good business sense for companies to allow fan-made works, especially when the fans that made the work aren’t receiving any kind of profit from work. What’s the harm, right?
In this case, however, it’s a little different. Nintendo may wish to protect the brand and maintain control of how it’s perceived and used among its followers. If Nintendo allows Pokemon Uranium to flow freely through the internet without consequence, it will send a message to other creators and fans that they can do the same thing. That could potentially produce a windfall of new games – and a host of new problems – for Nintendo when attempting to control Pokemon’s brand.
Likewise, it’s important to note that Nintendo’s cease-and-desist doesn’t really make a difference because Pokemon Uranium already reached so many people. Fans and users are often so entrenched in the gaming scene that they know long before a new version or copycat model is going to be released. In this instance, Pokemon Uranium was downloaded 1.5 million times in just a matter of days – millions of Pokemon users already have the game, and anyone out of luck could easily find an illegal torrent floating somewhere around the internet. Nintendo’s cease-and-desist is purely for show.
What’s more, even if Nintendo did decide to pursue legal action, what would be the benefit? Pokemon Uranium creators didn’t make any profits from selling the game since users were able to download the game for free. We don’t know much about the creators, but we can bet they’re probably a couple of gamers who don’t have much capital. Nintendo could sue them if they wanted to, but they probably wouldn’t be able to recover any money, making the suit completely frivolous and utterly pointless. Ultimately, their only goal with the cease-and-desist letter to Pokemon Uranium creators is to get the content removed.
What This Means for Creators of Fan-Based Works
Most companies realize that creators make for the love of the game. They know they won’t be able to recover any money for the infringement of their copyright, and there’s arguably no point in really going after fan makers. In fact, some even view fan-made works as good advertising for the product – even though it’s not the original, having more of their content out there only makes them more popular. Plus, in most cases, going after your loyal fan base isn’t exactly the way to ensure your brand stays in their favor. Overall, it makes better business sense for media giants to leave the little guys alone.
We previously discussed a similar issue involving CBS and Paramount against Axanar, the maker of several Star Trek fan films. In that case, CBS and Paramount actually went through the trouble of filing a lawsuit against Axanar – presumably because Axanar was becoming very well-known and financially successful as producers of Star Trek films. While the lawsuit was ultimately dropped, there are certain parallels worth discussing in order to really drive home our understanding of fan-made works.
For one, CBS and Paramount alleged that “The Axanar Works infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes. [Axanar] have raised over $1 million so far to produce these works, including building out a studio and hiring actors, set designers, and costume designers. The Axanar works are substantially similar to and unauthorized derivative works of [Star Trek].” Since the details surrounding Pokemon Uranium are so substantially similar, it’s safe to assume the key element of CBS and Paramount’s decision to sue Axanar was the fact that it was making money.
Ultimately, this suit was dropped – and in its place, CBS and Paramount carved out a few guidelines for fans who want to make their own media. You can read all of the guidelines here, but the most important ones to note include:
- The work can’t be commercial in nature
- The work can’t be protected by copyright or trademark
- The work can’t exceed 30 minutes.
- All parties involved in the making of the film must be amateurs.
While these rules only apply to Star Trek films, it’s a safe bet that most other film companies and media makers will apply the same guidelines when faced with a fan-made work.
As a creator, it’s important to ask yourself what your motivations are for creating a fan work. Do you want to make money? Are you after recognition? Or do you simply want to make an homage to something you love? If that’s the case, then it’s unlikely you’ll find yourself the subject of a copyright infringement lawsuit – but it’s also important to realize that your work is still a violation of copyright law, even if you don’t get sued for it.