Is there a way for a company to "take over" fan produced projects that run afoul of the DMCA instead of having them shut down?

[mahldcat]

I was looking at an article off the site "ars technica" about how Nintendo shut down a project that allowed people to generate their own fan made versions of the game "Pokemon":
https://arstechnica.com/gaming/2018/08/nintendo-shuts-down-tool-used-to-build-pokemon-fan-games/

Likewise Nintendo shut down a different project a few years ago called "Another Metroid 2 Remake" (where a fan remade the game "Metroid 2" that ran on the PC), and many people who played it consider it to be very well made.

In both cases the company takes a risk of alienating segments of their market by shutting down fan produced content. What has me curious, in cases like these, is there a way for companies to legally use some sort of "middle ground approach"

namely they offer the producers of the fan content a choice:
1) Do a full shut down of the game (which is what typically happens)
2) Have the authors yank the content as it exists, but then turn around and have the authors of the fan project work with the company to convert it into something that the company could officially endorse and release

 

[quincy]

I was looking at an article off the site "ars technica" about how Nintendo shut down a project that allowed people to generate their own fan made versions of the game "Pokemon":
https://arstechnica.com/gaming/2018/08/nintendo-shuts-down-tool-used-to-build-pokemon-fan-games/

Likewise Nintendo shut down a different project a few years ago called "Another Metroid 2 Remake" (where a fan remade the game "Metroid 2" that ran on the PC), and many people who played it consider it to be very well made.

In both cases the company takes a risk of alienating segments of their market by shutting down fan produced content. What has me curious, in cases like these, is there a way for companies to legally use some sort of "middle ground approach"

namely they offer the producers of the fan content a choice:
1) Do a full shut down of the game (which is what typically happens)
2) Have the authors yank the content as it exists, but then turn around and have the authors of the fan project work with the company to convert it into something that the company could officially endorse and release

Are you in the US, mahldcat? If so, what is the name of your state? If not, what is the name of your country?

The reason the fan-generated material is pulled from sites is that the fan-material infringes on the copyrights and trademarks of the creators/owners of the original material.

Trademarks and copyrights are valuable assets and these assets need to be protected to preserve their value.

The best way for a fan to create a game based on the creative work of another is to contact the rights-holder and either license rights to use the rights-protected material or work with the rights-holder to create a game together.

There really is no other good way to use copyrighted material or trademarks that belong to another without the very real risk of being sued.

The fan with a good idea for a game should get permission from the rights-holder to develop their idea before developing it and publishing it.

 

[Taxing Matters]

2) Have the authors yank the content as it exists, but then turn around and have the authors of the fan project work with the company to convert it into something that the company could officially endorse and release

The company could do something like that, though typically game companies will not go that route. However, some do take a similar approach on occaison. For example, Blizzard Entertainment has shut down several independent (and unauthorized) legacy World of Warcraft (WoW) servers that attempted to replicate what WoW players call vanilla WoW (the original version of the game). But last year Blizzard announced it would make its own "Classic WoW" servers that will provide the vanilla experience. So players will get to play an official version of vanilla at some point. But you don't see companies doing that sort of thing often.

In short there is not a legal prohibition for companies to work out something to bring the ideas of these unauthorized developers to market. It's just that in most cases they do not see it as profitable to pursue that.

 

[quincy]

If trademark holders do not prevent the use of their marks by others, they risk losing all of their rights in the marks. That is one reason why trademark holders vigorously protect and defend their rights by stopping infringers (through DMCA takedown notices, cease and desist letters, settlement demands, infringement suits).

If the marks are overused, they can become generic. Once a mark becomes a generic term, the owner of the mark can no longer capitalize off its use. The owner has lost a valuable asset.

Xerox and more recently Google have spent a lot of money (millions) on advertising to ensure consumers do not start using their marks to describe all copiers (e.g., I xeroxed the documents) or all internet search engines (e.g., I googled the information). Both marks were in danger of becoming generic terms. This is what happened to the former Escalator trademark and the former Soft Soap trademark.

The trademark holders also lose the ability to profit off other products they develop under their name - including making their own derivative games - if everyone is allowed to create free games using the trademark holders' creative and protected works.

Again, contacting the holder of the rights and acquiring permission is the legally safe way to operate.