Nintendo Copyright Strikes Video About Unreleased ‘Heroes Of Hyrule’ Game
from the nintendon't dept
It’s no secret that Nintendo is one of my common targets to slap around for its draconian enforcement of intellectual property, much to the annoyance of some Nintendo fans. It’s just that it’s… hard not to? This is an enormous player in the video game industry that wields IP as a method for taking down all kinds of fan-driven content that typically isn’t available anywhere else at the time Nintendo’s lawyers get involved. There were all kinds of takedowns for game music that Nintendo doesn’t make officially available, for instance. Then there were both the war on ROM sites and all of the other behavior the company engages in that threatens game/art preservation efforts.
It all boils down to this: if control of IP is at stake, Nintendo basically puts literally every other possible concern to the side and focuses on control. And that sucks, especially for those looking to preserve or document games from days gone by.
But I haven’t seen Nintendo copyright strike someone basically reporting on and discussing a game that never came out before. I can’t say that anymore, with the Did You Know Gaming YouTube channel having a video disappeared in which it discussed Heroes of Hyrule, which never made it past the pitch stage.
“Nintendo has removed our Heroes of Hyrule video from YouTube. This was a journalistic video documenting a game that Retro Studios pitched to Nintendo nearly 20 years ago. This is an attempt by a large corporation to silence whatever journalism they don’t like, and a slap in the face for video game history preservation. We are exploring all available options to restore the video.”
I’m tempted to believe that this was some automated system gone awry. Given that the game never even made it to a place where there would be gameplay footage to share, I can’t imagine there were any actual game assets in the video, though the video is currently down so I can’t check to be sure. But even if gameplay footage did show up in the video, this is still about as clear a case of fair use as I can imagine.
And because it’s Nintendo, I also have no problem believing that the company’s lawyers may have just nuked this thing manually, either. And if that’s the case, it’s even more absurd. Either Nintendo’s and YouTube’s combined attempts to automate copyright strikes sucks once again, or the company’s lawyers can’t recognize obvious fair use when they see it. Bad times either way.
The sites official Twitter account, meanwhile, has a pinned tweet actively encouraging everyone to let Nintendo know what they think about all of this.
All that negative PR the company is likely getting over a game that never got made? Sounds like Nintendo to me!
Filed Under: copyright, fair use, heroes of hyrule, journalism
Companies: nintendo
Comments on “Nintendo Copyright Strikes Video About Unreleased ‘Heroes Of Hyrule’ Game”
Did You Know Gaming has plenty of other videos about Nintendo games/franchises on its YouTube account, and none of them received a copyright strike alongside this video. This was a precision takedown.
Also: Hey, do any of you fuckers complaining about “censorship” on Twitter wanna drop in here and complain about Nintendo using the legal mechanism of copyright to censor a video about a game it never released?
'Just in case anyone forgot how much we LOATHE our fans'
Being such a control freak that you take down a video for a game that was never published, how very Nintendo…
When I started getting wind of this Nintendo behavior I promised myself I would not buy games from them for 10 years every time I read about IP fuckery involving Nintendo’s brand. I’m afraid the universe will have ended before I can buy stuff from them now so I stopped counting.
Copyright infringement on what?
Someone on the Lawful Masses Discord server shared this story a few days ago, and my response to this is still the same: On what grounds? Think about it… A third party company pitches a video game to Nintendo. Nintendo declines the pitch, and the video game is never made. Fast forward a few decades, a YouTuber makes a video documenting the history of the aforementioned pitch. And the resulting video receives a copyright takedown notice from… Nintendo?
Now, I’m no gamer by any stretch of the imagination. So I don’t know the exact history of the pitched video game. But does Nintendo even have rights here to the pitch? The video game was NEVER made, so I would have to think the rights to the video game pitch still belong to the company that pitched the game to Nintendo and not Nintendo themselves.
And even such a copyright claim may be untenable based solely on the pitch. You can’t copyright ideas, but only the form an idea takes. Any documents that aid in the pitch may have a thin copyright (again, belonging to the company that made the pitch and not Nintendo), but the game was never made by Nintendo. Does Nintendo even have any rights to authorize such a takedown?
I have my doubts, and even if they hold some rights, as the author says, fair use almost certainly applies here. Nintendo doesn’t have a leg to stand on here, but this is Nintendo we’re taking about. They clearly care more about IP enforcement than their own fans. So this behavior is unsurprising. Disappointing, but unsurprising!
Re: Just speculating...
The only possible pretext I could see for Nintendo to stand on in this scenario is if the video contained “B-roll” type footage of other games set in Hyrule while they discussed the failed pitch.
And even then, fair use could apply.
Re:
Way I see it, this is more of a trademark than copyright case. Hyrule and other names used in the pitch are Nintendo’s trademarks, therefore I can kind of see the point of taking this down if I squint really really hard.
But then we get to the issue of Youtube treating this as a copyright strike. Do they just not have a process for trademark claims? Did Nintendo’s lawyers just overreach on this one? I don’t know.
Also, why even bother removing this video? Did Nintendo want to memory hole third party studios doing things with Nintendo IPs? I don’t know that either.
Re: Re:
FUCK YES!!! This is clearly fair use, and Nintendo has no right to squash it. Fuck Nintendo.
Re: Re:
I’ve personally always held the idea that everything tangentially related to intellectual property gets filed under copyright, even if it isn’t. It’s just more convenient for IP fanatics. Plus, trademarks simply aren’t as sexy to throw around compared to copyright statutory “damages of up to 150k per infringement”. Also trademarks only last as long as they’re enforced while patents only last 20 years; copyright lasts a person’s lifetime plus 70 years. Maybe even longer if you pay the government enough.
Re:
Pitches like this don’t generally come out of the blue—especially when it comes to Nintendo. I’m not sure if this would qualify as a work-for-hire situation, but it would likely go right up to the line, as I imagine Retro Studios put together the pitch with the blessing of Nintendo, even if the company passed on the pitch anyway. The usage of Nintendo’s IP—the Zelda franchise, in this case—would also give way to potential trademark issues.
But as you’ve implied and others have outright said: Nintendo’s standing to claim copyright infringement over this pitch and the materials therein doesn’t much matter unless Nintendo can prove that this video isn’t Fair Use of those materials. I’ve no doubt that DYKG wants to avoid a lawsuit if possible, but they stand a chance of winning on the merits if a lawsuit becomes necessary. The video is absolutely Fair Use and Nintendo’s attempt to censor the video is absolutely bullshit.
But how can Nintendo release the ‘great new game’ Heroes of Hyrule on the Switch if people know it’s a 20 year old game from the DS that got shelved???
Alright, that does it…
This is over the line, even for Nintendo. This is Nintendo overclaiming their IP and venturing into COPYFRAUD territory. I’ve never been happier that I play my Steam Deck nowadays instead of my Switch.
It wasn’t enough that Nintendo was able to control who had their hardware in the 80s.
And it wasn’t enough that Nintendo has enough PR and money to force emerging INDUSTRIES to bow to them.
Now they’re going after people talking about pitches too?
I’d blacklist Nintendo (already do) harder, but most people don’t care about this, and Nintendo CAN afford to burn more of their PR anyway.
I’ve personally always held the idea that everything tangentially related to intellectual property gets filed under copyright, even if it isn’t.
🚨 UPDATE 🚨
Did You Know Gaming won. The video is now restored and available for all to see.