Why So Many Fan Games and Movies Get Shut Down
September 18, 2018 – Alec Blalock
You’ve seen it before. Some young director decides to make a gritty Power Rangers short or a small team of developers decide to make a Pokemon game. Then the creator or rights holder swoops in and sends a cease and desist letter asking to stop what they’re doing or they’ll be sued. Both examples listed actually happened.
In 2015, Adi Shankar made an original Power Rangers short that went viral until it was shut down by copyright claims, and Shankar was issued a cease and desist letter by Warner/Chappell, the rights holder to the Power Rangers theme song. Likewise, Pokemon Uranium was a fan-made game that included an original region to explore and 150 original Pokemon. It too was barraged by DMCA takedown notices and cease and desist letters from Nintendo’s lawyers. You can no longer download Pokemon Uranium from the creator’s website. Now, one could obviously understand why something that copied every aspect or remade something would be taken down, but why does it happen to things that have wholly original aspects? The answer as you may have guessed it, is copyright and trademark law.
I won’t go into great detail about what copyright and trademarks are, but the basic idea is that copyright protects the owner from someone using their characters while trademarks are supposed to protect the consumer by not allowing other people to use other company’s logos, color scheme, etc. so as to avoid confusion. The latter does have an extra wrinkle to it however. While you may be able to get around copyright as long as the author/creator/rights owner gave you the ok, trademark is a different story. A trademark operates on a use it or lose it situation, and with that the trademark owner must enforce and police their trademark. If a business fails to do so, they risk the possibility of not being able to seek remedies available to them or worse, losing their trademark entirely. It’s this reason Nintendo is very protective of their IP like Pokemon. If they allowed the fan-made games like Pokemon Uranium or AM2R (Another Metroid 2 Remake) a pass then Nintendo will have opened themselves to the possibility of losing those trademarks. And although the characters of Pikachu and Samus Aran are protected by copyright, if the trademark is lost another game company could swoop in and just do exactly what the creators of Pokemon Uranium did. Create new regions with original Pokemon designs and they avoid copyright.
And that brings me to an important point that most people seem to miss about both copyright and trademark: quality control. The reason we allow people and companies to have these bundles of rights is so that they can carefully control how they want their product/characters to be viewed and used. If there was a scenario where Nintendo lost their trademarks there could be a scenario where the populace is inundated by companies making Pokemon games, thus devaluing the brand overall. That’s what was probably going through the minds of the rights holders of Power Rangers when they saw the gritty short by Adi Shankar. Power Rangers is a kid show. And whether or not it was actually harmful, the rights holder probably viewed a more adult take of the characters as damaging to the characters or the brand. I can completely understand the desire to see characters we grew up with seen in a new light or have them grow up with us. I can also understand having it be your dream to make a sequel to your favorite game. But the trouble is that many of these things run afoul of the owner’s copyright or trademark, and (especially in the latter’s case) these things will be enforced to protect their brand.
But there is a bright spot for all you would be creators. Nothing can stop you from creating something inspired by a copyrighted or trademarked property. You can create a Pokemon like game or a Super Sentai (Power Rangers) like show. You cannot copyright an idea. Pokemon Uranium could’ve still been a thing if they didn’t use any trademarked symbols (like the Pokemon name) or copyrighted material (Pikachu, elite 4, Nurse Joy, etc.). The concept does not need to be original. In the 90’s every shooter was called a Doom clone, because the mechanics were identical but none of it ran afoul of copyright or trademark laws because everything else was original.
And if you’re a small business you need to be aware of these laws and your rights. No one wants to lose their trademark and potentially irrevocably hurt their brand. So, if you’re an owner of a small business and you have questions or concerns about enforcing your copyright or trademark, please seek out an attorney immediately to help you through these things and fight for your company’s rights. Enforcing your mark or copyright is a tall order for just anyone to do and you will need someone with specialized knowledge and skills to help you monitor how your property is used.