If they don't, then you just release your clone anyways.

HORRIBLE IDEA.

Developing a game with a placeholder asset that you don't intent to release, or for the purpose of pitching it to a company, that is one thing.

But what you just described is willful infringement.

I don't think that's what he meant - he's not saying make an infringing game, ask for permission, then distribute anyway when they say no. He's saying to make a non-infringing game, but then asking if he can have permission to use things like characters. If not, there's no infringement with the original game.

I'd agree it's a bad idea to do it anyway; they'd still likely say no. And it probably doesn't help to go telling another company that your took your ideas from them, even if it's not something covered by copyright.

I'm sorry for beating the crap out of this thread, but, I got the e-mail back. Most of it was nothing new, but there was something in the e-mail I don't understand, and maybe you all can clear this up for me. Here's the e-mail:

what confuses me is this statement: "Although we are unable to grant permission, use of Nintendo properties without our formal permission may still be allowed depending on the circumstances." What does that mean? Does that mean, even though I can't use explicity characters and stuff from Nintendo, that it is ok however to use concepts from the games? What does it mean?

It means, "we might or might not come after you. Are you feeling lucky, punk?" But in a nice and polite way.

However, what confuses me is this statement: "Although we are unable to grant permission, use of Nintendo properties without our formal permission may still be allowed depending on the circumstances." What does that mean? Does that mean, even though I can't use explicity characters and stuff from Nintendo, that it is ok however to use concepts from the games? What does it mean?

There are a few exceptions to trademark, copyright, and other IP rights. Most IP rights have their own fair use exceptions.

The letter is probably referring to copyright's parody exception, and the trademark use would need to have a nominative defense.

It would be an extremely difficult thing. First, you must have a parody of Nintendo's product. You cannot have a broader scope because then it becomes a satire, not a parody, and satire is not an exception. You would need to use the trademarks only in a way that satisfies trademark's 3-prong test.

If Nintendo decided to sue the still could, you would go to court and announce "Yes, we used their IP without permission. We believe it fits this exception." If the court doesn't agree, and finds that even the tiniest bit does not fit the exception, you have basically admitted guilt to willful infringement.


It is a very narrow and difficult path to try to make a legal parody. Don't go there without the help of a good lawyer. Additionally, a good lawyer will recommend you avoid the practice.

Just go be creative and make something of your own.

I think you would be much better off making prototypes of your games and writing up proper design documents and have the ability to make a proper pitch (even though it might not help) than just emailing them. I doubt any large company would just give up their property like that. And then you can always work on the prototype after with your own art, sound etc..... Or just go apply for a job at Nintendo.

The letter you received (which was nice of them to send!) is letting you know that your use may fall under "fair use" as set forth in US copyright law

http://www.copyright.gov/fls/fl102.html

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.

If you're making a game, then none of those would apply. They don't know if your use would fall under 'fair use' because 1) as they say they dont' give legal advice and 2) as they mentioned, they didn't review your submission (because the don't have adequate staffing to review submissions).

My hunch is the letter you received is a standard lawyer-approved response to anyone who writes in unsolicited asking to use Nintendo properties.

My hunch is the letter you received is a standard lawyer-approved response to anyone who writes in unsolicited asking to use Nintendo properties.

Seconded.

@Tom- Did I do something to offend you? Ever since I joined, to me (and maybe you don't intend to be this way) but you come off mean. Maybe it's something that I did that was wrong, but I'd like to know.

To the rest- That's fine, I don't mind making my own games. It's not like I can't come up with ideas in a snap, anyone who knows me will tell you, I can think of an entire story within 5 seconds-2 minutes. I actually have this other game in mind based on a story I once wrote but never completed, and yes it was original. Characters from other genres, games, etc... were never used. So, I don't mind. Plus, putting up anything legally against Nintendo is pretty much a 99% automatic fail, because Nintendo is big and the name itself sells, so to go up against a corporate giant is ridiculous.

@Tom- Did I do something to offend you? Ever since I joined, to me (and maybe you don't intend to be this way) but you come off mean. Maybe it's something that I did that was wrong, but I'd like to know.

Several people have expressed that in the past.

Tom is both precise and terse.

Personally I find it refreshing and useful. It encourages people to refine their facts and just ask their real questions. Often in the process of refinement the individuals can discover their own answers.

@frob- Thanks for the insight. I thought it was because I instant messaged him one time, and he went all sorts of bananas on me. And if that's the case, uh...sorry? Thank you though for clearing that up.