Last week, The Game Awards named Skyrim mod Enderal the Best Fan Creation of 2016 after two of the four nominees were pulled from the awards. One of the projects whose nominations were rescinded was Pokemon Uranium, a fan-made Pokemon game many years in the making. The other was Another Metroid 2 Remake (AM2R), a project that infused more modern gameplay conventions into a remake of Metroid 2. At the heart of it all is legal action by Nintendo against the creators of those projects for copyright infringement. If you are making fan game or mod, you might be worried about what these high-profile developments mean for your work. Why are Enderal (a total conversion mod of Skyrim) and Brutal Doom 64 (an enhanced port of another fan project for the N64 iteration of Doom) allowed to be distributed and recognized while the other two are no longer available to download? To learn about the legal issues and how people who wish to make fan projects can navigate this delicate territory, read on.
Because fan creations are based on an already existing game or series, they are legally known as “derivative works”. For example, the developers of Enderal took aspects of Skyrim such as its UI, art assets, and mechanics (many of which were altered) and incorporated them into a game which has an original story and does not take place in the Elder Scrolls universe. Similarly, Pokemon Uranium is a derivative work because it takes the structure of a Pokemon game (the player must catch creatures in order to battle through 8 gyms and compete in a regional championship) along with some existing Pokemon and combines them with a region and creatures that were created just for the project. Under US copyright law, the right to create a derivative work lies solely with the original game’s copyright owner. Legally, only Bethesda Softworks and its parent company ZeniMax may create sequels and mods, or license others to do so. Despite this, Enderal is available for download and has been commended by Bethesda. On the other side, Pokemon Uranium is no longer available because Pokemon’s publisher Nintendo issued a takedown notice for it.
Ultimately, the decision comes down the publishers themselves. Although these derivative works are legally considered copyright infringement, the publisher has the choice of whether to pursue legal action against fan projects, embrace them, or simply turn a blind eye towards them. Bethesda sees projects like Enderal and Fallout-based film series Nuka Break as ways to attract new buyers for their games and inspire loyalty from their existing fanbase. For example, I spent over 500 hours on the Xbox 360 version of Skyrim. When I built my gaming PC later on, I considered buying Skyirm again because of mods. Bethesda knows that kind of thing entices people like me to buy or re-buy their games.
On the other hand, Nintendo often sees fan projects as threats to their sales and the perception of their brands because they have spent decades building a certain image with their games. In addition to the copyright issues, Pokemon Uranium had the potential to confuse customers into believing that it was an official Nintendo product because the “Pokemon” title and logo were used in the game and on all of its promotional materials. The more danger a publisher perceives, the more likely they will be to take legal action. And as we saw with the fan remake of Battlefront 3, the Fair Use defense to copyright infringement would probably not apply in these cases.
The bottom line is:
Be careful with your fan creation if you’re going to make one. Know which publisher you are dealing with and what their history is with respect to how they embrace or suppress creations based on their games. As a Chrono Trigger/Cross fan who pined away for a sequel for years before giving up hope, I understand what fan games like Chrono Trigger: Crimson Echoes try to do. Nonetheless, the law is very clear that only the copyright owners of a game may give permission to make sequels, remakes, mods, films, or other works based on it. But you still have options because every situation is different. You may still be able to make your game depending on its contents and its potential relationship with pre-existing games. When in doubt about potential legal issues surrounding your work, it is highly recommended that you consult an attorney who knows the game industry and intellectual property law. A lawyer can help you weigh the risks of your project and help you avoid spending years on a fan remake only to be forced to never distribute it. I can be contacted here.