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## Scared that Nintendo will say that one word: "NO!" (need input)

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### #1PaperMariolover  Members

Posted 28 April 2013 - 05:20 PM

*If this has already been answered, then can someone direct me to a thread similar to this?  Thank you!"

So, just recently I got ahold of Nintendo's "legality issues" e-mail address (I put legality issues in quotes because, I don't know what else to call it.  Their legal department?  lol, whatevs.)  See, I have this really awesome idea for another Paper Mario game.

The only problem is, in order for me to proceed with this project I would obviously need to have their characters, backgrounds, etc... right?

Now, before anyone says anything, I understand that most game companies, especially the big ones like Nintendo and such are very strict in giving rights to anyone.  I've tried this before, probably 2 or 3 times hoping for a "yes" but would always receive a no.

But this time, I put something in the e-mail I sent, that I didn't normally put before, only because at the time I wasn't completely literate with copyright law.  I put that I would give them due credit, and that I wouldn't make any money off the game.  I said I would just do it out of pure fun and my love for the game.  I also gave them a semi long, but not-too-long background of the game.

Now, I've sent this e-mail to them 2 days ago, and I still haven't gotten a response back.  Now, granted, it's the weekend and seeing how big Nintendo is, I seriously doubt they have people work weekends, but I'm just kind of getting tired of being shot down.  And, something else I put in my e-mail that I really thought long and hard about mentioning (because this is where I have this sneaky suspicion that they're going to say no period) is, this game would also be using characters from Super Mario RPG: The Legend of the Seven Stars.  Well, I want the style of Paper Mario to remain the same as it has throughout the series.  That's why they call it Paper Mario.  However, I asked if it would be ok if I could alter the characters so that they could look the same style as the characters in Paper Mario.  And, I bet that's the dealbreaker, knowing Nintendo.

So, my question is this:  If you were Nintendo, what would you say?  AND, if you were to say no, in the future what would I need to show Nintendo to even get a possible yes?  Would Nintendo want, for example, a Game Design Document?

-PaperMariolover

### #2Cornstalks  Members

Posted 28 April 2013 - 05:33 PM

POPULAR

So, my question is this:  If you were Nintendo, what would you say?

I would say no. I wouldn't care that you wouldn't be making money or not. The problem is that I'm not making money (regardless of whether you are or not). It's my intellectual property. I use it to make money. It's what funds my company. If you use it, it must benefit me.

Also, if I let you use it, then I am giving up some control of it. I want to control the story. I want to set the stage. I want to make sure that the game evolves in such a way that it creates maximum profit for me. I need the story to be written the way I want it written. If I let you do that... well, that's not gonna happen.

AND, if you were to say no, in the future what would I need to show Nintendo to even get a possible yes?

I would need to see a professional portfolio of past completed work. You would need to be a professional studio that had already released games that impressed me. That would prove to me that you have the skill to complete it with the kind of high quality that I expect (and demand). I certainly wouldn't let a small indie studio use my intellectual property.

But even then, chances are I wouldn't let you, even if you were a professional studio. I'm Nintendo. I've got studios. If I want it done, I've got an army of professionals to do it. You'd have to be pretty dang convincing to convince me to let you make a game for me, instead of using the thousands of employees I already have.

Would Nintendo want, for example, a Game Design Document?

I'd say yes and no. Yes, they would probably want that, but no, that probably wouldn't be enough. Not even close.

Sorry, I'm just trying to be realistic. Nintendo is pretty defensive about their intellectual property. Most companies are. It's like trying to walk into the White House to meet with the president because "you have a good idea." You don't really get to just walk into the oval office, present your idea to the president, and have him say, "I like it, I approve!" Fat. Chance.
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### #3Alpheus  GDNet+

Posted 28 April 2013 - 05:33 PM

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Once you start using copyrighted material, the answer is gonna be 'no'. No matter how much credit you give them. You can make the game and show a YouTube video, but that's about it. Distributing a game, even for non-profit and "academic" purposes is gonna get a C&D letter from Nintendo. You're better off just making your own graphics, sounds, and music.

In short, you won't be getting a 'yes'. Ever.

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### #4PaperMariolover  Members

Posted 28 April 2013 - 05:37 PM

Also, please know I have great respect for the gaming community and the laws surrounding it and for video game companies, and if Nintendo says no, then I won't continue on respectfully.

And thank you guys for all of your answers.  Guess my game Paper Mario 2 is out of the question :/ (The actual title of the game was going to be Paper Mario 2: The Star Princess, and is supposed to be somewhat of a sequel to Paper Mario.  Crappage...I just really loved the concept.  Oh well, thanks!)

Edited by PaperMariolover, 28 April 2013 - 05:43 PM.

### #5Cornstalks  Members

Posted 28 April 2013 - 05:39 PM

Also, please know I have great respect for the gaming community and the laws surrounding it and for video game companies, and if Nintendo says no, then I won't continue on respectfully.

I think I understand what you mean, but the way that's worded, it reads like you'll continue on disrespectfully

Edited by Cornstalks, 28 April 2013 - 05:39 PM.

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### #6PaperMariolover  Members

Posted 28 April 2013 - 05:53 PM

^Lol, what you said.

### #7Tom Sloper  Moderators

Posted 28 April 2013 - 06:42 PM

0. Scared that Nintendo will say that one word: "NO!"
1. *If this has already been answered, then can someone direct me to a thread similar to this? Thank you!"
2. So, just recently I got ahold of Nintendo's "legality issues" e-mail address (I put legality issues in quotes because, I don't know what else to call it. Their legal department? lol, whatevs.)
3. See, I have this really awesome idea for another Paper Mario game.  If you were Nintendo, what would you say?
4. AND, if you were to say no, in the future what would I need to show Nintendo to even get a possible yes?
5. Would Nintendo want, for example, a Game Design Document?

0. Yes, they will say no.

1. Here are three:
http://www.gamedev.net/topic/631562-how-to-write-a-letter-to-publishers/
http://www.gamedev.net/topic/624535-regarding-a-proper-way-to-get-permission-to-make-a-fan-game/
I had to dig back 9 pages to find all of those. But that's all I had to do, was click and scroll and scan subjects. You need to be willing to work harder to find answers.
2. "Legal department" is the usual term for the legality department. But what you want in this case is Business Development, or New Business, or Licensing.
3. "What's in it for us?"
4. A solid business plan that shows how Nintendo could make a profit and how your game will enhance the IP without diluting Nintendo's ownership of it. Even then, it's likely to be turned down.
5. At some point, sure.

Edited by Tom Sloper, 28 April 2013 - 07:34 PM.

-- Tom Sloper
Sloperama Productions
Making games fun and getting them done.
www.sloperama.com

Please do not PM me. My email address is easy to find, but note that I do not give private advice.

### #8kburkhart84  Members

Posted 28 April 2013 - 08:27 PM

All of the above posters are right.  I'm not saying it is right, but there are many "fan" games made, and the great majority of them don't get the famous C&D letter.  But they could at any moment.  If it is me, I don't do it.

1.  Even using there graphics, sounds, concepts, etc...  you still have to put some work into it.  You'll never be able to legally make any money off of said work.  Don' you think it would be better to put your time to better use??

2.  Can you imagine just your luck, you are 95% finished with the game, and then end up with a C&D letter.  Not only can you not finish the game, but you lost all the time you spend on it.

3.  There is no law saying you can't use gameplay from other games.  So if you wanted to make an RPG with "paper" graphics and "time-based" hits, all similar to paper mario, you could.  You just can't use "mario" and the respective characters, enemies, graphics, places, etc...  But you can come up with your own story, characters, graphics, etc..  and make almost an identical game with no problems.  Gameplay can't be copyrighted.

4.  Lastly, originality(as long as it is fun) sells.  Sure, clones sell too, but for an indie, clones are much harder to sell than original ideas.

### #9Azaral  Members

Posted 29 April 2013 - 06:41 AM

All of the above posters are right.  I'm not saying it is right, but there are many "fan" games made, and the great majority of them don't get the famous C&D letter.  But they could at any moment.  If it is me, I don't do it.

1.  Even using there graphics, sounds, concepts, etc...  you still have to put some work into it.  You'll never be able to legally make any money off of said work.  Don' you think it would be better to put your time to better use??

2.  Can you imagine just your luck, you are 95% finished with the game, and then end up with a C&D letter.  Not only can you not finish the game, but you lost all the time you spend on it.

3.  There is no law saying you can't use gameplay from other games.  So if you wanted to make an RPG with "paper" graphics and "time-based" hits, all similar to paper mario, you could.  You just can't use "mario" and the respective characters, enemies, graphics, places, etc...  But you can come up with your own story, characters, graphics, etc..  and make almost an identical game with no problems.  Gameplay can't be copyrighted.

4.  Lastly, originality(as long as it is fun) sells.  Sure, clones sell too, but for an indie, clones are much harder to sell than original ideas.

This.

Just make a clone, and make it so that you can easily make it 'Mario', all your names and what not being variables so you would just have to change names once and what not. Once you are done, show THAT to Nintendo and say, I want to make this a sequel to Paper Mario, and you will get royalties from it. If it is of good quality, they would be crazy to say no because they have almost nothing at risk. You've already done all the work, paid all the costs, all they have to do is decide if they like it to be a sequel to Paper Mario and won't hurt their reputation in that regard then sit back and collect money.

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

### #10frob  Moderators

Posted 29 April 2013 - 12:13 PM

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.

Normally, if a fan game made a game and naively copied their IP, the game owners would get a C&D order demanding the content be taken down.

But in this case, the person pitched it to the publisher, announced their intent, publicly stated online that they knew they were violating the law and violating the IP owners rights, and that they are going to proceed to violate it knowing full well that it is unlawful.

In that case Nintendo will probably skip the polite C&D order.  They will probably jump directly to a civil lawsuit.  And because Nintendo has evidence that you submitted the product to them, and almost certainly will search the Internet and find this thread, they'll have evidence that you willfully violated their IP, just about any court in the country will agree that it was willful infringement.

With willful infringement, the courts will usually give the MAXIMUM possible penalty.  If they don't think that is enough, they will also consider "enhanced" penalties, often it is 3X the maximum penalty for 'innocent' infringement.

There is only one correct answer:  Do not steal from others.  Make your own IP.

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### #11mdwh  Members

Posted 30 April 2013 - 07:55 AM

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.

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### #12PaperMariolover  Members

Posted 30 April 2013 - 11:13 PM

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:

Hello Jake,

Thanks for writing in.  I can tell you spent a lot of time and thought on your idea, and it's flattering to hear you wish to use our Intellectual Properties in your game.  To us, your request represents a great sign of success and recognition of the Nintendo brand.

We are grateful for all the requests we receive for permission to use Nintendo properties; however, we receive thousands of requests and do not have adequate staffing to review them all.  Therefore, our general policy is to decline all such requests, no exceptions.  I realize this isn’t what you wanted to hear and thank you for understanding.

Although we are unable to grant permission, use of Nintendo properties without our formal permission may still be allowed depending on the circumstances.  You are encouraged to seek your own legal counsel if you have any questions about whether your particular proposed use is permitted without Nintendo's authorization.  This is not a comment on whether we believe your particular proposed use is permissible—Nintendo cannot provide legal advice.

Sincerely,

Curtis Neal
Nintendo of America Inc.

Now, like I've said, I've written to companies before asking permission to use their characters and what-not, and it was pretty much a solid no.  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?

### #13Tom Sloper  Moderators

Posted 30 April 2013 - 11:44 PM

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.

-- Tom Sloper
Sloperama Productions
Making games fun and getting them done.
www.sloperama.com

Please do not PM me. My email address is easy to find, but note that I do not give private advice.

### #14frob  Moderators

Posted 01 May 2013 - 12:25 AM

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.

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### #15walsh06  Members

Posted 01 May 2013 - 03:40 AM

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.

### #16bschmidt1962  Members

Posted 01 May 2013 - 11:47 AM

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

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.

Edited by bschmidt1962, 01 May 2013 - 11:51 AM.

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### #17Tom Sloper  Moderators

Posted 01 May 2013 - 12:00 PM

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 Sloper
Sloperama Productions
Making games fun and getting them done.
www.sloperama.com

Please do not PM me. My email address is easy to find, but note that I do not give private advice.

### #18PaperMariolover  Members

Posted 01 May 2013 - 03:55 PM

@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.

### #19frob  Moderators

Posted 01 May 2013 - 04:29 PM

@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.

Some people interpret that as unfriendly.

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.

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### #20PaperMariolover  Members

Posted 01 May 2013 - 04:34 PM

@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.

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