Of all its characters, Nintendo is best represented by Kirby, a cutesy pink blob named after an intellectual property litigator. In 1983, John Kirby convinced a judge that Donkey Kong was not a trademark infringement of Universal Pictures’ King Kong. The win helped pave the way for the company’s wild success in the video game industry. Now, it is Nintendo that doles out the legal claims to protect its IP.
The latest fan fixed in the hot glare of Nintendo’s Sauronic eye also happens to be one of the most well-known. Eric “PointCrow” Morino boasts 1.6 million followers on YouTube, and is known chiefly for his videos of The Legend of Zelda: Breath of the Wild: fun content like beating the game wielding only shields. In November 2021, he put up a $10,000 bounty for a Breath of the Wild multiplayer mod; two weeks ago, modders AlexMangue and Swee secured the bag, allowing 32 players to come together and climb Hyrulian mountains.
On April 6, Morino began posting triumphant videos of Link hide-and-seek. Shortly thereafter, Morino posted a new video claiming Nintendo had hit his channel with Digital Millennium Copyright Act takedown requests, effectively blocking four of his Breath videos. Morino tweeted that he was “incredibly disappointed,” and emailed Nintendo to appeal. Nintendo responded by bombarding Morino’s channel, bringing the total number of strikes to 28, even targeting videos that do not feature Breath or mods.
In Morino’s last video, which he has since delisted, he read a statement prepared by his lawyers, pleading with Nintendo to stop, claiming that the multiplayer mod is protected under the fair use doctrine of US copyright law. (Morino did not respond to an interview request for this story.) “Please remove these strikes and claims or at least start a dialogue with us so we can all move forward with the excitement I’m sure you would love to see about your future games,” he said in the video, wondering aloud if streamers would be afraid to post videos about the upcoming The Legend of Zelda: Tears of the Kingdom.
Nintendo’s reaction is no surprise. The company’s reputation precedes itself. Over the years, it has issued endless strikes against content creators, from YouTube channels collating its soundtracks to fan-made homages. But this month, as The Super Mario Bros. Movie rules the box office and Nintendo spins up the hype machine for its next Zelda release, this new string of copyright claims points to a different issue. Namely, how intellectual property law, and efforts to retain control of IP, chafe against a medium that, by its very nature, encourages creative community interaction.
Nintendo has been involved in many lawsuits, and not always as the plaintiff. After Universal lost its suit claiming that Donkey Kong infringed on the King Kong trademark, it cleared the way for Nintendo’s ascent. In 1989, the company sued Blockbuster over game rentals (ex-Nintendo of America chairman, Howard Lincoln, likened them to “commercial rape”), claiming that photocopying the instruction manuals was a violation of copyright. (Blockbuster agreed to find other ways to replace lost or damaged manuals, but the rental game continued unimpeded.)
Most media companies end up in legal scuffles over their IP at some point, but it’s Nintendo’s claims against its own fans that raise blood pressures. Often, its strategy appears rather antiquated, the corporate equivalent of old man yells at cloud.
In 2013, for instance, the company cottoned on to “Let’s Plays”—videos of people playing through a particular title—claiming ad revenue on any video featuring footage of its games. Then, two years later, it introduced the bizarre—and unprecedented in the industry—Nintendo Creators Program. Creators could continue to use Nintendo content in their videos if they gave the company 40 percent of the advertising revenue those videos generated (or 30 percent if they registered their channel with the program). YouTubers boycotted, leading to a significant amount of ill will at a time when the Wii U was floundering and the company could have used some easy promo.
“Nintendo has positioned its action as a gentler approach; rather than trying to ban content related to Nintendo games, they just want to make money off it by changing the video that an individual uploaded,” Cory Doctorow wrote on Boing Boing in 2015. “Yeah, um, guys that’s not a whole lot better. It also comes across as cheap and lazy—rather than creating content for YouTube that fans and players would want to watch, Nintendo is just taking over other peoples’ content.”
Nintendo ultimately changed its mind, abandoning the program in 2018 for a new set of “basic rules” that allowed for Let’s Plays and other similar videos, If those rules were followed, Nintendo said, “we will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright.” While the U-turn suggested that Nintendo decided that swatting swarms of internet Let’s Plays was unsustainable, critically, nothing legal changed.
Though Nintendo has not given a direct reason for its copyright strikes against Morino’s YouTube videos (and did not respond to requests for comment), it seems evident that it was his posting of footage featuring the mods and emulators, and his inciting the mods’ creation, that provoked Nitneod’s reaction. In the past, the company has decried the use of game emulators, calling them “the greatest threat to date to the intellectual property rights of video game developers” and shutting down everything from popular ROM sites to modded Super Smash Bros. tournaments.
In his video response, Morino claimed the mod he was using fell under the protections of fair use, the concept in US law which allows for use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” How US courts, including, currently, the Supreme Court, will apply the law varies case by case, and the four-factor test judges use to determine if something qualifies for fair use protection—the purpose and character of the work, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market—is very open to interpretation. This isn’t a problem with a mathematically neat solution; it needs testing.
“The challenge in issuing copyright takedown notices under the DMCA is it is hard to know how the multi-factor fair use test would ultimately turn out if litigated,” says Victoria Schwartz, professor of law at Pepperdine’s Caruso School of Law.
Mods put Morino on even shakier ground. “Modding is, on its face, infringement. Whether you use original assets or not, a modder is still adapting a previously created copyrighted work in a way the rights-holder may enforce against,” writes Alex Leturgez-Coïaniz, a legal partner at KBL Roche, in an article exploring mods’ legal status. Fair use (likely, not certainly) wouldn’t cover this either. “A mod, free or not, would still involve a modder’s use of copyrighted material to create a derivative work, and would most likely be outside of fair use’s scope,“ he writes.
Regardless, these legal hypotheticals are often rendered moot by the costs of litigation, costs that prohibit most people from fighting multibillion dollar corporations. “This all comes out of the uncertainty from the fair use analysis in copyright law,” says Schwartz. “The YouTuber believes what he is doing counts as fair use. But the fair use analysis is famously unpredictable, which for the individual defendant means it is expensive to fight.”
Modding, at its best, is an artistic outgrowth of play: a change to the rules of the game. But for Nintendo, Schwartz cautions, the picture is broader than copyright. Nintendo is protecting against pollution of their trademarks. Like, for example, shutting down games that associate Pokémon with guns. “Their strategy would be to keep that trademark very child- and family-friendly,” says Schwartz. “Disney has this issue, right? Disney wants to remain very child- and family-friendly. So they’re going to especially heavily police infringing uses that don’t fit within that trademark and brand identity.”
What this means, as YouTuber Moony points out in a smart summary video, is that video game “content creation”—a term that both over and underestimates the art and dross it encompasses—is “ever at the mercy,” as he phrases it, of how authoritarian a corporation feels on any given day.
If there’s a deeper tension here, it’s that these legal maneuvers diminish the unique power of interactive works of art. Legend of Zelda: Tears of the Kingdom, for example, will feature the most awesome sandbox the company has ever conceived, a wonderland of mushroom shields and flying boats, contraptions that seem inspired by the hijinx of Zelda streamers. These are worlds that reward imagination. But with each new legal claim, Nintendo limits which imaginations count.