We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, copyright allies are taking on different elements of the law, addressing what's at stake, and discussing what we need to do to make sure that copyright promotes creativity and innovation.
Guest author Carolina Alonso is a third-year law student at Georgetown and former Public Knowledge intern. She is interested in intellectual property and technology law. She is an avid videogamer and a freelance artist on the side.
When I was in elementary school, I noticed that students always lost their pencils so I began decorating personalized ones and handing them out. It took up so much time that I decided to sell them. My profits bought me an extra cookie at lunch and a trip to the principal’s office. The school closed down my shop. I was devastated, but what was a seven-year-old going to do against a school principal? The next year, I came across a table labeled “School Shop.” It was selling pencils. I stared at it, confused and heartbroken as to why the school would bar me from my idea, take it, and then profit off of it.
The state of modern video game culture is troublingly similar to this example.
For years, fans of Nintendo’s Mario series have been creating their own Mario levels to play or to share. Communities of gamers began using YouTube as a hub for sharing their fan-made levels. Fans were the original creators of the idea to tweak Mario levels, and in doing so, fans also created a market for fan-made levels, complete with a supply and demand system, except without the exchange of money.
Nintendo latched on, seeing opportunity to profit in the new fan-made market. Nintendo began issuing massive takedowns of YouTube videos of fan-made Mario levels. After which, seemingly strategically, Nintendo announced the release of the product Mario Maker, where players can build custom Mario levels on a Nintendo console. Instead of fans creating and sharing their works in a community for free, the big video game developer is forcing fans to purchase a product if they want to continue participating in the fan community. It is a sweet and sour outcome, where players, especially ones who do not know how to modify games, are happy that they can create a more customized experience of their favorite games, but at the same time Nintendo is limiting creativity and innovation by monetizing a market that was originally free and created by a community of fans.
There is something to be said about Nintendo’s copyright interests. Many times, a copyright owner practices what some have called “tolerated use,” where the copyright owner allows infringement to occur so that fans can produce free marketing or because the owner believes in the fan’s right to practice creativity. In many cases, a fan can even end up picking up licenses from the original copyright owner in order to expand their work. For instance, J.K. Rowling allows several websites dedicated to Harry Potter, like the Leaky Couldron, to run without interruption, because although infringement is occurring, she wants fans to participate in Harry Potter culture. It seems as if tolerated use could be a solution to striking a balance between a fan’s desire to participate in a community and a copyright owner’s interests.
When a large company with many more resources than an individual or small group of fans attempts to have its cake and eat it too, tolerated use no longer protects creative consumers, but rather is used as a tool by large companies to exploit potential markets. By using fans’ idea of creating personal Mario levels and turning it into a product, Nintendo has created an environment where its fans must spend money on their products, limiting fan culture to solely official Nintendo products.
Image credit: matt2tb