SpritesMind.Net

Super Mario Bros tribute Princess rescue has been abruptly yanked from AtariAges storefront
http://www.youtube.com/watch?v=73TcDWQDFMk

All official communication on the matter seems to be gagged
http://atariage.com/forums/topic/215885 ... -releases/
http://atariage.com/forums/topic/212554 ... try2827513

This is especially disturbing because Princess Rescue never uses Nintendos trademarks directly or rips sprites from the game it pays homage to. Even worse is the apparent gag on even discussing that a legal threat was made.

I think this has a very chilling effect on homebrew deveopers and classic game development as a whole.

slobu wrote:This is especially disturbing because Princess Rescue never uses Nintendos trademarks directly or rips sprites from the game it pays homage to.

No, but it's quite clear that it's a Super Mario clone. With a character that is clearly Mario. Plus, it was a Super Mario clone for sale. It doesn't help the hombrewer's case.

I think this has a very chilling effect on homebrew deveopers and classic game development as a whole.

Only if the content of your homebrew clearly infringes on somebody else's IP.

djcouchycouch wrote:

slobu wrote:This is especially disturbing because Princess Rescue never uses Nintendos trademarks directly or rips sprites from the game it pays homage to.

No, but it's quite clear that it's a Super Mario clone. With a character that is clearly Mario. Plus, it was a Super Mario clone for sale. It doesn't help the hombrewer's case.

I think this has a very chilling effect on homebrew deveopers and classic game development as a whole.

Only if the content of your homebrew clearly infringes on somebody else's IP.

Right. If this were "Pac Man 4k" I'd agree. This is a tribute game with many similarities but no actual use of Nintendo IP.

Your own game has similarites to Time Pilots and Sopwith. Does it deserve not just a cease & desist but a gag order preventing you from raising concerns about it?

No offense meant

Nintendo has ALWAYS been pricks about clones of their games, legal or not. They have billions to fight in court, even when they're wrong. Sega is generally nowhere near as bad... the only thing I can think of regarding Sega lately was when they had the guy take down SoR V, and that WAS using Sega IP, not just imitating it like Princess Rescue. Even when you just hack a Sega game (like all the Sonic hacks), Sega normally has no problem with it. Nintendo tends to sue first and ask questions later.

Chilly Willy wrote:Nintendo has ALWAYS been pricks about clones of their games, legal or not. They have billions to fight in court, even when they're wrong. Sega is generally nowhere near as bad... the only thing I can think of regarding Sega lately was when they had the guy take down SoR V, and that WAS using Sega IP, not just imitating it like Princess Rescue. Even when you just hack a Sega game (like all the Sonic hacks), Sega normally has no problem with it. Nintendo tends to sue first and ask questions later.

I just realized the ROM download is still available. Maybe they didn't completely object to it after all?

slobu wrote:

Chilly Willy wrote:Nintendo has ALWAYS been pricks about clones of their games, legal or not. They have billions to fight in court, even when they're wrong. Sega is generally nowhere near as bad... the only thing I can think of regarding Sega lately was when they had the guy take down SoR V, and that WAS using Sega IP, not just imitating it like Princess Rescue. Even when you just hack a Sega game (like all the Sonic hacks), Sega normally has no problem with it. Nintendo tends to sue first and ask questions later.

I just realized the ROM download is still available. Maybe they didn't completely object to it after all?

Well, they certainly objected to it being sold.

It would be interesting to know how much is preemptive voluntary removal and threatening demand by the big N.

I think many people confuse original but similar work with trademark infringement. A port or a hack is a clear violation. This is not.

The problem is the law itself. Did you know that if any company fails to enforce its trademarks, IE, such as sending cease and desist letters for trademark infringement, they can effectively lose their trademark, or the infringing party can gain a free perpetual license to continue to use that trademark without remuneration? Google the need to enforce trademarks and you'll find plenty of info, eg, here's an article from Forbes:
http://www.forbes.com/sites/oliverherzf ... -you-lose/

Companies have to aggressively enforce trademarks to protect their own trademark rights. The question isn't whether Nintendo actually cares about an indie game based on Mario Bros, it's about whether it's a legal liability for them to turn a blind eye to it, and the reality is, yes, it is.

Except this has nothing to do with trademark since there are no trademarked images, names, or sounds in the game in question. It uses no IP from Nintendo, just the same gameplay, and gameplay has NEVER been protected in any case taken to judgment.

Some devs would LIKE it if gameplay were a protected resource, but it's not. Again, look at all the cases for clones of PacMan and Space Invaders.

Well that's a different story then. If there's no trademark infringement, and no copyright violation, there should be no problem. Like you said though, Nintendo can be real Nazis about this kind of thing.

Here's the deal:

In cases of trademark infringement, there's no burden to prove exact duplication of a company's intellectual property, as long as it looks strikingly similar. This is called substantial similarity. (To learn more about substantial similarity, read this article.) In such cases, the trademark owner must demonstrate that the usage of the mark is likely to confuse the consumer.

Now, I know what you're thinking: "No one in their right mind would confuse Princess Rescue with a Nintendo-produced Mario game." You're probably right, and it probably doesn't matter. Nintendo would be more likely to claim trademark dilution by tarnishment, meaning that the product harms Nintendo by associating their widely famous trademark with a shoddy product.

Of course, you could argue all you want that Princess Rescue is obviously a homebrew fan-game that is only likely to be seen by a small niche group so who gives a damn. But, Nintendo has every right to protect their IP how they see fit, and there they go.

From the videos, that's the most blatant alternate console Mario ripoff I've seen since Giana Sisters. The only thing it seems to be missing is proper level layouts.

Mario 3 sprite + Mario Land Goombas = hilarity ensuing

TascoDLX wrote:In cases of trademark infringement, there's no burden to prove exact duplication of a company's intellectual property, as long as it looks strikingly similar. This is called substantial similarity. (To learn more about substantial similarity, read this article.) In such cases, the trademark owner must demonstrate that the usage of the mark is likely to confuse the consumer.

Yes, but this is also part of substantial similarity: "The court excludes all public domain elements from its analysis and looks only at those elements that are protectible."

It has to be a protectable element FIRST, and THEN it must be substantially similar. I think it's more just Nintendo being a bully, again. They're known for taking people to court, even when they KNOW they don't have a leg to stand on.

Chilly Willy wrote:It uses no IP from Nintendo

I think this is debatable, it isn't exactly air-tight. That sprite is plainly identifiable as Mario, even if the exact sprite wasn't ripped. There are precedents for IP infringement based on similarity to a company's existing indicia--which that "Mario" sprite would probably qualify as. The music (from what I could tell from that youtube video with that very slow guy talking over it) is exactly the same. Sure, it may not be exact the same data, but copyright has to count for something on the music as the tune is being reproduced. (Unless it has been changed around or something and I couldn't tell.) The guy's work isn't protected AFAIK just because he created it from scratch.

Nintendo is pretty aggressive about its IP because at least in the USA, companies have to actively defend against infringement-if they don't, it can be cited as forfeiture of the trademark. This would be a bad precedent for a company fighting actual software piracy. I am betting though more likely AtariAge is probably a little jumpy about getting a C&D from Nintendo. I would be.

Honestly if the guy's game is actually good, he should just change the potentially infringing stuff to generic stuff, or see if he can make it into a Giana Sisters thing. Like you said, there's no way Nintendo could go after him for making a game that is simply Mario-like gameplay. "Looks like Super Mario, but on 2600" is gimmicky and you could make an argument that the person who coded the game used the Mario association probably for publicity and to help sell it, which would actually put Nintendo well within their rights to do something about it.

Chilly Willy wrote:Yes, but this is also part of substantial similarity: "The court excludes all public domain elements from its analysis and looks only at those elements that are protectible."

It has to be a protectable element FIRST, and THEN it must be substantially similar. I think it's more just Nintendo being a bully, again. They're known for taking people to court, even when they KNOW they don't have a leg to stand on.

All the game characters are protectable: Mario, Goomba, Koopa, Piranha Plant, etc.

powerofrecall wrote:The music (from what I could tell from that youtube video with that very slow guy talking over it) is exactly the same.

Ah yes, the music. Very protectable.