Loving Our Neighbors: Fangames and IP Protection

By Michael Mendis

In my years of playing games with others and browsing gaming forums online, I’ve found that gaming communities are made up of incredibly passionate people, coming together over a shared enjoyment of specific games, franchises, or genres.  Some of these ardent fans are talented programmers, aspiring to create their own games and inspired by the games they love.  As a result, it is not uncommon to see what are popularly known as “fangames” (unofficial, fan-made games using characters/assets/etc. from pre-existing game franchises) popping up around the internet and creating buzz amongst fellow fans.

This can create a problem, however.  Since fangames use intellectual property (IP) that belongs to other companies, those companies are legally allowed to halt the distribution of fangames at any time, regardless of whether or not the fangame is being sold or simply being made available to the public for free.  And Nintendo has recently made headlines by doing just that.  In September of this year, Nintendo issued a DMCA (Digital Millennium Copyright Act) takedown notice for over 500 fangames.  This caused quite a stir among Nintendo fans looking to play or create their own Nintendo-themed fangames.

Looking at the situation from the perspective of the company, it isn’t too hard to grasp the reasoning behind the decision to shut down some fangames.  For example, a company like Nintendo may worry that unofficial games which stray too close to the real thing can cause brand confusion, and disincentivize people from buying official Nintendo products.  Take a look at this screenshot:

That looks remarkably like a real Pokémon game, does it not?  But this is actually a fangame called Pokémon Uranium, which mixes official characters with unofficial, fanmade characters to create a new experience.  I can understand why Nintendo would want to shut this kind of thing down; if someone has an itch to play Pokémon, why spend hundreds of dollars on a Nintendo device, and then dozens more on an official game, when you can download a comparable experience for free off the internet and play it on a computer you’ve already paid for?

Other types of fangames can be a more direct threat to the brand that a company has established.  As this article by Ars Technica notes, some of the games shut down by Nintendo include Mario on Drugs and Pokémon: Death Version, games with themes that very much clash with the kid-friendly atmosphere that Nintendo tries to cultivate with many of its most popular franchises.

Nonetheless, issuing a DMCA notice or sending a creator a cease and desist letter inevitably leads to frustration amongst fangame makers and their audience, people who are typically already fans and owners of official products.  They feel that the creativity of the community is being stifled, and that the companies who own the IP will benefit in the end through the increased exposure that fangames bring to different franchises.  Gamers feel especially burned when the fangames in question have been in the public eye for a long time, or when the IP owner hasn’t made many new games with that particular franchise in recent years.  One of the games taken down in this recent DMCA notice was a remake of Metroid 2 that had been announced eight years prior and in development ever since.  The game’s creator described his surprise in an interview found in the aforementioned Ars Technica article:

“Doctor M64 [the game’s creator] said that while he ‘knew that any form of legal action was a possibility’ during his years working on the game, he was still surprised when his hosts got hit with DMCA requests so soon after the long-awaited initial release.  ‘The game became very popular in 2008, and I expected a similar amount of attention upon release.  I also expected the same amount of legal issues as in 2008: none.’”

Seeing the controversy surrounding Nintendo’s legal action, game publisher SEGA has attempted to capitalize on this by encouraging fans of their Sonic the Hedgehog franchise to continue making Sonic fangames and other creations.  When a popular YouTube channel published a Let’s Play of a Sonic fangame (strong language warning), the official Sonic the Hedgehog YouTube account posted the following comment to the video and received the subsequent response from the game’s creator:

So what do we make of all this?  How do we approach such a contentious issue in the gaming community?

One thing I am NOT going to do here is make any sort of philosophical or legal statement regarding the nature of intellectual property rights.  While that is a perfectly legitimate discussion to be had, it is quite simply outside the scope of my expertise.  Rather, I’d like to focus on how, in the current legal climate, gamers and game creators can show Christian love to one another even in the midst of disagreement.

First, as gamers, we need to be respectful to those who are recognized by law as owners of a particular gaming franchise.  These big companies aren’t simply faceless corporations; they are made up of real people, image-bearers of God, and the franchises we love wouldn’t exist without the time and effort they put into making them in the first place.   It’s OK to feel disappointed or frustrated when a promising fangame is taken down, but don’t let those feelings lead to sin.  Furthermore, taking an adversarial approach to game companies is just as likely to make their executives mad at its fans as it is to make them want to change their policies.

Second, IP owners should encourage the creativity of its fans, communicate its expectations clearly, and make decisions as soon as possible when it comes to taking down a fangame.  Protecting your brand and maintaining positive relations with the community don’t have to be mutually exclusive.  Fangames by their nature tend to be smaller scale than the official products they are inspired by, and thus can be more experimental, introducing new ideas that can keep fans engaged with the brand and perhaps spark creativity among official game development teams as well.  A company may even discover talented fangame creators that can be hired to work on official games.

On the occasions when a company feels it is necessary to take down a fangame, it is in the best interest of everyone involved for them to do so sooner rather than later.  Admittedly, no company can be expected to keep track of every fangame that the community creates, but in a situation like the one involving the Metroid remake, where a game is publically announced well ahead of its release and is making waves amongst fans, the IP owners should try to make a decision quickly as to whether or not they will take action against it.  That spares the game creators and the fan community from the heartache of seeing a highly anticipated title disappear just as it is being made available to the public.

At the end of the day, questions surrounding fangames and property rights remain; it’s a sticky issue, and one that isn’t likely to go away anytime soon.  But in the meantime we can all learn to treat one another with respect and love as we play games and engage with community.