Do fan games have a future? AM2R, Sonic Mania, and the creative process

Fans are a little angry at Nintendo right now. As of this writing, Nintendo has taken down the  remake, AM2R, the fan-made Pokémon game, Pokémon Uranium, the No Man’s Sky platformer mashup, No Mario’s Sky, and hundreds of other Nintendo fan games on Game Jolt. But this isn’t anything new for the big N. Nintendo has shut down multiple Zelda fan movies, Smash Bros. hacks, an HD remake of Super Mario 64, a 2D version of Ocarina of Time, and they’ve even taken down fan fiction and fan animation like Super Mario Bros Z.

With all these legal takedowns happening left and right, one has to ask whether or not we will ever see the successful release of a fan-made game without the law getting in the way? Are fan games doomed to die in copyright hell? Is there any future for these labors of love?

The Creative Process: Consume, Copy, Create

Imagine you are on a college campus. It’s spring, people are wearing t-shirts again, and the local hipsters are sitting on stoops and lawns with their guitars, strumming out partially accurate melodies. What song are these budding musicians playing? Are they all playing original compositions of their own design? Likely not, unless they are really trying to impress their girlfriends.

Instead, they’re probably playing some other band’s songs, something from a band they idolize, songs that are easy to play because the chords are simple and the formula is familiar, like Knockin’ on Heaven’s Door by Bob Dylan or the Lazy Song by Bruno Mars or… god forbid… even Rockstar by Nickleback. They’ll take their acoustic guitar covers to local cafés to make some money until they finally make enough to get that van they always wanted. Then they’ll look for some bandmates on Craigslist, maybe do a few cover gigs, and then finally start writing their own music, which hopefully sounds nothing like Nickleback.

This is the creative process in a nutshell. A new artist experiences a form of art, becomes inspired by it, imitates it, and then makes art of their own. No one in the world starts out by making their own original IP from scratch.

A Pivotal Point in Game Design

Music and writing have been around for ages, and the next youngest medium, cinema, has still had hundreds of years to grow and evolve. The creative process has been well established for these forms of media. But video games are still very young, formed in an age of rapidly evolving copyright law. By best estimates, games as a popular form of media have only been around for about 40 years.

Think about that. New musicians tend to be people who grew up loving music. New directors and actors are people who grew up loving films. But only now are we starting to see people who grew up with videogames become the next generation of game designers. Before then, game designers migrated into the industry from other professions. Those game designers really did make wholly original IPs from scratch because no one knew what they were doing. The whole medium was still too young.

But now we do know what we are doing, and so the familiar pattern of consuming media, copying media, and then creating your own media has set in. Up and coming game designers are now making fan games as their first projects, just like writers write fan fiction and musicians play covers. It’s much easier to jump-start your game development career with fan games because so many of the mechanics are already decided. We already know how Mario jumps, how Sonic runs, and how Mega Man shoots. With these mechanics already filled in, budding designers can spend their efforts focusing on other areas, like map and enemy design.

When a fan game is done, the designer just has to release it to the internet to get feedback. Except, time and again, we see this process hindered by law. Developers of fan games get Cease and Desist orders sometimes years after they’ve started their project, making all their effort go to waste.

So why is that? Why do random college students get to pass around CDs filled with Nickelback covers but the creator of AM2R needs to delete every trace of it from the internet?

Believe it or not, it has nothing to do with copyright.

Greek Fraternities, AM2R, Copyright, and Trademark

Now for the requisite legal discussion. Nintendo did not take down AM2R because it’s a company filled with snidely whiplash-style villains who have nothing better to do than twirl their curly moustaches and tie fan-game creators to train tracks. No, they took down AM2R because our legal system is a tangled labyrinthine web of catacombs that would put a Metroid map to shame.

A common misconception is that copyrights need to be protected or else the company that owns them will lose their rights to the intellectual property. This is just plain untrue. If it were true, Nintendo would have to go to court every time a 14 year old writes a fanfic about Samus and Princess Peach’s hot love affair. A million fan games could be published and Nintendo would still hold the copyright for literally hundreds of years. Whether or not that’s a good thing is debate of copyright law and, believe it or not, is a matter for another article because copyright law actually isn’t what’s preventing fan-games from being made in the first place.

You see, while copyrights don’t have to be defended, trademarks do. Copyrights protect creative works like books, movies, and video games. But trademarks protect brands, slogans, and images. This is why your neighbor Steve can’t randomly decide to open up a burger joint named McDonald’s if he isn’t part of the McDonald’s franchise. It’s also why he can’t use the slogan “Theeeey’re great!” for his legally distinct cereal, Frosted Bits.

An example of this precedent can be seen in the court case Abraham v. Alpha Chi Omega. Thomas Kenneth Abraham was a manufacturer of products themed after Greek fraternities, like those hoodies you constantly see sold in college gift shops. Abraham began manufacturing these products in 1961, but did not receive a cease and desist order until 1990. The matter did not go to court until 17 years after the first C&D was issued. The court ruled in favor of Abraham, stating that the fraternities did not take reasonable steps to defend their trademark and that Abraham in no way attempted to deceive consumers regarding the connection between his company and the Greek organizations featured on their products. This set the precedent that companies need to be proactive when defending their trademarks.

Most video game franchises are both copyrighted and trademarked. The copyright protects the games themselves and gives Nintendo the sole right to make Metroid games. The “right” to “copy” them, so to speak. The trademark protects the Metroid brand. This way, other companies can’t make Metroid brand cereals, t-shirts, or shoe polish without Nintendo’s OK.

And that’s the problem here. AM2R was, in no uncertain terms, a “Metroid” game. It used Nintendo’s brand, so Nintendo needed to protect it. Note that immediate action is not necessary, just action in a “reasonable” amount of time. But AM2R was in development for over 6 years, if you recall. In addition, concepts or portions of ideas do not need to have action taken against them, which is why Nintendo didn’t take down any of the demos.

Nintendo has even made a statement to the press explaining their reasoning behind taking down AM2R. They said it was necessary to protect the Metroid trademark, and they are right. If they allowed AM2R to exist for a prolonged period of time without taking any action against it, then Steve could open up “Metroid” the spaghetti and motor-oil emporium, and Nintendo couldn’t do anything about it. By the way, this is also why Nintendo had to take down 562 other fan-games in a similar time-frame. It was to show that they were taking actions to protect all of their trademarked titles.

Not to rush to Nintendo’s defense, but this is pretty much the best of both worlds. Everyone assumes that they honestly believe that AM2R will disappear from the internet with a DMCA notice. If they really wanted to get rid of it, they could have issued a C&D while it was still in development. Instead, they waited until after its official release, giving it just enough time to end up in the hands of gamers everywhere.

So if you have a problem with AM2R’s takedown, blame our legal system before you blame Nintendo.

That being said, there are better ways Nintendo could have handled this. How? Well you only have to look to their old rival, Sega.

Sonic: Faster Than a Cease and Desist

It’s no great secret that Sega has lost touch with the Sonic: The Hedgehog franchise. Bombs like Sonic ’06 and Sonic: Boom seem to be the norm, while gems like Sonic Colors and Sonic Generations are unfortunately rare. At this point, most of Sonic’s original designers have moved on to other projects and what the franchise has left are a group of programmers trying to simultaneously imitate and innovate on the Sonic formula.

But there is already a group of programmers who have been doing this for much of their programming careers: Sonic fan hackers. In fact, Sonic hacking is so prevalent that there is a yearly Sonic fan hack showcase. Some of these fan-made ROM hacks are really good, far more impressive than simple level edits. They add new characters, new mechanics, and new enemies. They feel much more like a traditional Sonic sequel than Sonic 4 ever did.

While the programmers working with Sega on new Sonic titles surely take pride in their work, it’s safe to say that they aren’t necessarily fanatics the way these fan hackers are, and that’s where we see a huge and important difference. Learning general design and programming is important if you are going to end up being a general designer and programmer that can fit in at any studio. But these fan hackers take their craft a step further. They don’t just learn how to make video games, they learn how to make Sonic games.

And Sega seems to understand this. Over the past few years they have hired notable fan hackers to help them with Sonic projects. One said hacker is Christian Whitehead, otherwise known as The Taxman. He is well known for his fan-game entitled Retro Sonic The Hegehog, which managed to port the original Genesis Sonic engine into a standalone Windows executable (i.e. without using emulators.) It also allowed custom levels to be imported into it, which opened up a humongous amount of creative options in level design. He also dabbled in creating mobile phone conversions of popular Sonic games like Sonic CD. In 2011 Sega picked up his ports and later commissioned him to work on other mobile phone port sof older Sonic games. Whitehead’s Retro Sonic engine is now being used to make Sonic Mania, a much-anticipated 2D throwback to the original Sonic formula, and he himself is working on the game. No, Whitehead’s fan games didn’t earn him a Cease and Desist. They got him a job.

Speaking of Sonic Mania, Sonic fans might have also noticed that Headcanon Games is participating in the project. Headcanon is headed up by Simon Thomley, AKA Stealth, who is well known for SonED, a self-programmed rom hacking level editor. He too made a Sonic: The Hedgehog engine that ran from scratch on PCs and he too got himself a job for his efforts.

Both of these programmers proved that they understood the Sonic formula and Sega saw value in that. For all their faults, they were one of the first companies that understood that the next generation of designers will be the previous generation of gamers.

Keep Up With the Times, Nintendo

But Sega is not nearly the first company to find value in fan hacks and mods. Capcom also jumped on the fan appreciation train with Street Fighter X Mega Man. Originally a fan project by Singaporean developer Seow Zong Hui, SFXMM was picked up officially by Capcom who then assisted in the production of the game. Capcom then gave the game an official free release in 2012, which circumvented a lot of legal issues. After all, this was an official Capcom release now so they didn’t have to worry about losing their trademark. Hui was, for all intents and purposes, a Capcom employee at that point, regardless of what he was or wasn’t being paid. And Street Fighter X Mega Man was, for all intents a purpose, a Capcom product, despite the fact that it was free.

In fact, fan programmers have been recognized for their efforts even going back into the early days of game design. Remember that Counter-Strike was originally a mod of Half-Life designed by Minh "Gooseman" Le and Jess "Cliffe" Cliffe. Now, Valve officially owns the rights to the game and it’s the world’s leading e-sport.

Nintendo could have taken any of these routes with its fan games. It could have purchased AM2R. It could have distributed it for free as a Nintendo product. It could have offered the developer, Milton Guasti, a job. In a way, Nintendo is the oddity for DMCA-ing this many fan projects, not the norm.

The Bottom Line: Do Fan Games Have a Future?

Nintendo isn’t the only company that has issued Cease and Desist orders on fan games. Square took down a number of Chrono Trigger fan games, including Chrono Resurrection, an HD remake. Konami took down a similar remake of Metal Gear: Solid.

But at the same time, Nintendo hasn’t taken down all of its fan games. Notably, Mother 4 is still in development, and despite the recent rash of Nintendo takedown notices, the team is still pushing forward with no Cease and Desist having been received.

So is it safe to make a fan-game? Unfortunately, the answer is no. Any fan-game can, at any time, be taken down by the company that holds the copyright/trademark. That’s just how our system works. Barring a major revision to our intellectual property laws (which I certainly wouldn’t mind happening, but that’s an article for another time) courts will always, ALWAYS side with the company that holds the IP.

That doesn’t necessarily mean that fan games have no future. Like it or not, AM2R is on the internet now getting downloaded millions of times, far more times than Metroid Prime: Federation Force was purchased. While Nintendo may not recognize Guasti’s talent, other companies might. Heck, he’s even said he’s working on a new project, a totally original IP using what he learned making AM2R. The popularity of AM2R will certainly help his new project get off the ground.

As time goes on, more and more companies will come to realize that there is a vast untapped resource of game design talent hidden in their fans. As the saying goes, adapt or die. These companies will eventually come to embrace their fan creators, or their IPs will die as they slowly lose touch with the design elements that made them great in the first place.

So it’s important that fan-creators continue making fan-games to show major game development companies this talent. It’s important that fan-games continue to be made to show that there is still interest in otherwise dying franchises. It’s important to make fan-games to hone your skills as a developer, and make your name known as a designer. Regardless of their fuzzy legal status, fan-games are here to stay. Expect the back and forth between lawyers and fan-developers to continue on far into the future.