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[JWK5]

that's bullshit. you are not obligated to "defend" your IP. you are not obligated to defend your trademark either btw, that's a myth propagated by trademark trolls to justify their behavior.

I've read it in Trademark sites that if you don't defend it you lose it. I've not read "lolmakeup.org".
And i'll defend my IP anyway. Problem?

An easy resolution for Nintendo would be to drop a set of rules down for fangames. In this manner they are still using their trademark (by the simple fact that they are providing the stipulations in the first place) but they are giving room for their fans to create while still giving Nintendo ample grounds to shutdown any fanworks they deem inappropriate, such as hentai games or something featuring their characters, or games that use official art (from Nintendo commercial products).

[s0]

that's bullshit. you are not obligated to "defend" your IP. you are not obligated to defend your trademark either btw, that's a myth propagated by trademark trolls to justify their behavior.

I've read it in Trademark sites that if you don't defend it you lose it. I've not read "lolmakeup.org".
And i'll defend my IP anyway. Problem?

https://www.eff.org/deeplinks/2013/11/trademark-law-does-not-require-companies-tirelessly-censor-internet

Second, Canonical is not “required” to enforce its mark in every instance or risk losing it. The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—are quite limited. Genericide occurs when a trademark becomes the standard term for a type of good (‘zipper’ and ‘escalator’ being two famous examples). This is very rare and would not be a problem for Canonical unless people start saying “Ubuntu” simply to mean “operating system.” Courts also set a very high bar to show abandonment (usually years of total non-use). Importantly, failure to enforce a mark against every potential infringer does not show abandonment.

if you read your link carefully, under "failing to police", it says it can hurt your trademark's market value if you don't police it. nowhere does it say that there's a legal obligation to combat every single instance of trademark infringement ever. if that was the case, nintendo would have lost the legend of zelda trademark long ago. zelda classic came out in 1999 and has never been hit with any legal action by nintendo in its 17 years of existence.

[gimymblert]

And countless fan art later

[Alevice]

fan art might fall into fair use.

[ProgramGamer]

If IP defense is a myth, then what is the motive to crack down on the fan projects of late? There has to be a reason for this, right?

...
if you read your link carefully, under "failing to police", it says it can hurt your trademark's market value if you don't police it.
...

Well there we go.

[Alevice]

and lets not forget a copyright and a trademark are not the same thing!

[Alevice]

http://www.legalzoom.com/trademarks-patents-copyrights/summary-compare-trademark-copyright.html


http://www.legalzoom.com/business/intellectual-property/compare.html

[s0]

and lets not forget a copyright and a trademark are not the same thing!

i know, i was just disputing this specific claim

btw, alessio, i didn't meant to imply that you are a trademark troll. i was just saying that the origin of the "every trademark infringement has to be defended against or else the trademark becomes void" myth spread thanks to trademark trolls using it as justification.

[Alessio]

and lets not forget a copyright and a trademark are not the same thing!

I've mentioned Trademark only because i've read about people (in other sites) saying "not protecting Copyright makes you lose it", so, i wanted to clarify that this statement was related to Trademarks instead. I know they're not the same thing but are related. Therefore, to the ones who dismiss me about my idea of defending my IP speaking about trademark... because trademark isn't what we were writing about.

I don't know why people talk about trademarks now, which is something that has little to do with a fan-remake In this case, the title "Super Metroid" is a trademark. Samus Aran and the Metroids as characters are intellectual property and are copyrighted. The topic should be deepen anyway and this guy, i mean, Guasti, should have contacted a lawyer before proceeding with all this. Thus, he could have avoided this hassle.

Fan Art isn't fair use, though, i'm sure. But literally no one sues an artist for one simple fan picture. But you have the full right to take down fan-art. If it was fair use, then Blizzard couldn't remove these "rule34" fan-art of Overwatch or anything like that.
I'll also make a weird example. I always thought that a crossover of The Simpsons and Bone (the comic about a marshmallow guy) would be funny. I stopped before even beginning it. What if the original IP owners don't like it? The same thing with Nintendo. I won't take the risk. If i wanted i could do few pages that aren't linked together and that actually shows the gags i wanted to show so bad (Moe's prank calls just make me ROFL).

If i was an author of something, i wouldn't go to every artist and take away everything i could. You're also seeing a post of someone who made a lot of fan-arts. I've also made something remiscent of Rayman Legends and How To Train Your Dragon that could possibly fall into fair use (because it's meant as a kind of parody). But we have to be careful with that. You have to check if derivative works are permitted by the IP owner. For example, as long as you don't go NSFW, Rowling is totally okay with Harry Potter derivative works. Others are too rigid even for me. And i'm very rigid. Mostly, fan-art is tolerated and encouraged (i discovered Undertale because of deviantART and Fox openly has his policies) but it's still copyright infringement. No author will tolerate derivative works that are monetized on, though. Rowling will Avada Kedavra you if you ever try to make a fan-novel of Harry Potter and make money off it.
I've read an interesting article about this topic.

Fan-fictions, fan-art and fan-games are all in the same boat. The Metroid Remake, i'll say, is the same thing of an enhanched fan-remake of the first Harry Potter's book: Instead of a mere 225 pages you write over 600 pages just like the fourth book and on. You use a darker atmosphere remiscent of the latest books' ones. Then release them for free in the web, saying "it's just a remake, buy the books anyway"... Rowling will "just" Crucio you for this. But you hoped she could "absorb" these fan-works and use them in official releases... why would you hope this? If you believe she'd be an ass to shut down years of tiresome fan-works, she would be a triple ass for actually using them for her own profit. Because you, the fan, don't have right to that money. Why would she reward someone who violated her IPs? Same with Nintendo.

For the rest, if you make a game or any kind of IP, it's up to you to decide your policies. You just can't call someone a "jerkass" because they wanted to defend their IP from something that could actually harm their sales. Nintendo doesn't allow fan works? Deal with it then, you should be doing it with something else then. Kinda Sonic. SEGA seems to allow fan games and even ROM hacks (sometimes). Just keep in mind that SEGA isn't known for being a fine company and could turn against you when you least expect it.

[rj]

neither here nor there but sega literally hired christian whitehead because of his fangames and the ability to get scd running in his custom engine. mania basically started as a fangame.

they've never dmca'ed any sonic fangames or rom hacks to my knowledge, only...non-sonic ones (sorr being the big example)

anyway fan art is fair use, and also it isn't. the only thing deciding what is and isn't is a court ruling. that ruling only happens case by case. if it doesn't go to court, it can't ever get a ruling.

[JWK5]

The thing is, as long as the authors of a fan art really want it to live it won't die. It can easily be transmitted, put on torrent sites, and passed along back alleys of the internet no matter how much the owning company disapproves. Sometimes that alone is enough of a silver lining to keep the projects worth it for the authors.

[gimymblert]

What's fair use looks like in french laws?

[ProgramGamer]

Utilisation Légitime.

[s0]

also afaik the metroid remake dev is not in any actual legal trouble. he just got a dmca takedown.

[Alessio]

neither here nor there but sega literally hired christian whitehead because of his fangames and the ability to get scd running in his custom engine. mania basically started as a fangame.
they've never dmca'ed any sonic fangames or rom hacks to my knowledge, only...non-sonic ones (sorr being the big example)
anyway fan art is fair use, and also it isn't. the only thing deciding what is and isn't is a court ruling. that ruling only happens case by case. if it doesn't go to court, it can't ever get a ruling.

Legally, it isn't never fair use. There are specific condition for fair use. And fan art is derivative work not transformative enough to be considered parody or subject of education and reviewing.

And why would they DMCA other games and not Sonic? This stinks as non-professional to me. If SEGA wans to keep with their terrible business moves, that's their problem, i just wouldn't look the fact they hired fan-artists as a positive thing. If SEGA wants, they could sue Whitehead for doing unauthorized stuff. At least, Nintendo doesn't do this mess and, despite the WiiU's not very great success, isn't as starving as SEGA. Because SEGA is one company that is starving and i believe it's parly because of bad business decisons.
So, be careful: what could seem positive may turn extremely negative. SEGA arne't the good guys here.

The thing is, as long as the authors of a fan art really want it to live it won't die. It can easily be transmitted, put on torrent sites, and passed along back alleys of the internet no matter how much the owning company disapproves. Sometimes that alone is enough of a silver lining to keep the projects worth it for the authors.

Often, companies can't do much against them. For example, Nintendo had hard times dealing with NES bootlegs. Mostly because these smuggling bootlegs were distributed where Nintendo couldn't officially operate. Same with ROM sites. Nintendo won the battle agaisnt CoolRom and now you can't find any more Nintendo ROMs there (as far as i know). But there are other sites whose servers are hidden in countries where most companies can't directly operate because of these countries' laws. At least that's what i've read in articles but i should do a better research.
But, sometimes, you manage to catch the criminals behind these torrents sites. KickassTorrent's owner has been arrester recently. The same happened to Kim Doctom.

Can't really understand why so many people support them.

[rj]

Legally, it isn't never fair use.

yeah that's what i said. glad we agree. it's not never fair use. sometimes it is fair use. it's entirely dependent on court ruling on a case by case basis, which means if it doesn't go to court you can literally not say whether or not it is fair use. you can only speculate on whether or not it probably is. fan works, in general, tend to be considered likely fair use.

also, uh, you basically are talking nonsense with the rest of that. the reception to sonic mania, as well as whitehead's sonic cd, 1, and 2 ports, has been literally universally positive. in terms of business decisions, it's an impossibly good one for sega. the only bad business move they made was canning SORR, given that it netted them nothing except for negative PR and bad attitudes. and given that SORR went back up and is easier to access these days, i'd say that means they're probably not going to do that again any time soon.

especially since everyone seems to be citing sega's handling of sonic mania as "the right way to do things" in complete opposition to AM2R in almost every thread I see about it

[s0]

btw, japanese companies tend to leave fan works alone because the doujin scene is big and important in japan and they see it as encouraging a larger and more loyal fan community (i.e. more people to buy their official stuff). as has been stated in this thread repeatedly, nintendo cracking down on things like metroid or the mario 64 demo is actually anomalous in their history as a company. zelda classic has already been mentioned. super mario bros X, by the guy who later made terraria, has also been untouched by nintendo lawyers for many years. im just cherry picking some high profile examples here, but there are many more.

and even the metroid "takedown" was pretty half assed. if they actually wanted to stop AM2R being released, they could have done that, like square did with the chrono trigger remake. but they didn't. the game is now irrevocably out there.

tbh your only real argument against fangames is that they're technically illegal. you seem to care more about this than the actual companies you're defending.

[gimymblert]

Just because something is legal don't mean it is just. Soon you will be jail for humming a song (actually it happen with the happy birthday song at a shcool without the jail). There is a confiscation of culture.

[Magurp244]

But, sometimes, you manage to catch the criminals behind these torrents sites. KickassTorrent's owner has been arrester recently. The same happened to Kim Doctom.

Can't really understand why so many people support them.

Its not that simple. Right now I could go to thepiratebay and download any movie, song, or TV show known to man with no commercials or hassle, for free. Hell, I could go to Youtube and watch a lot of things for free. When you compare that to "legal" sources with advertising, price gouging, sloppy availability (if any), device locked formats (so you have to pay X times per device), crappy DRM, planned obsolecense, and geoblocking through a million different (pay) services, people tend to question their necessity. This is all largely the result of industries who refuse to adapt to changing markets and have an excess of legacy interests and stakeholders, theater chains for example absolutely refuse to allow movie studios to release direct to the net because they would become all but extinct like BlockBuster and the rental industry (although MGM maybe inching that way). Cable companies keep trying to cripple internet connectivity because they want to maintain their TV services (again, youtube). From there though things get muddier.

There's an entire cottage industry of Copyright enforcement agencies like RightsCorp, or the infamous Prenda Law who deal exclusively in "speculative invoicing" extortion rackets, using scare tactics to try and get quick settlements from users (infringing or not). Or the use of the DMCA to take down competitors, reviews, or "monetize" other peoples work on youtube for example. Then you have the MPAA and RIAA, the copyright proxies of major movie and music studios like Disney, 20th Century Fox, etc. whose CEO's are honored with some of the biggest multi-million dollar salaries for "record breaking profits" in the billions, while in the exact same breath screaming bloody murder that file sharers and the internet are bankrupting the industry and costing them (purely speculative) "millions". And let's not forget their lobbying efforts for extended retroactive copyright terms (life + 70 and going!) thanks to Disney and their cohorts raiding the public domain. Or maybe that time they made a backroom deal with US attourney general Jim Hood to run a smear campaign against Google. Or the whole SOPA thing where they could bypass the courts entirely and take any site they want down for any reason with no legal recourse. Or that people in other countries have tunneled into the US using a VPN, legally purchased a US netflix account (to watch the shows they want), and then been summarily banned and labled thieves.

Its all cray cray.

[LucasMaxBros]

Didn't they recently make the birthday song fair to use? Also, isn't there a company that owns the color yellow, think it was Pickle Ball?

This type of stuff is always nuts to me.