I already saw this Aftermath Pokemon Lawyer article getting passed around on Cohost, but I don't want my reply to read like a callout post to that person, so I'm posting it for myself.
I also tweeted something similar, but I think it's important to be said in places other than twitter:
I'm the founder of SAGE. You know, the big bi-annual celebration of fan games and, increasingly, indie games? The event that is probably directly responsible for why Steam seems to have a new demo event every few months now? Yeah. I started that over 20 years ago.
Nowadays, demo events like that serve as important milestones for indie and fangame developers. Real game development is full of many such milestones -- you have to prove to the suits that you're working hard, meeting deadlines, and staying on budget. Solo developers and newbies don't really have that, so it helps to have things like SAGE as a way to show your work, test your concept in a public setting, get feedback, eventually catch your breath a little bit and regroup before continuing the next leg of development.
But back when I started SAGE in high school, the primary thing I was concerned about was just, like... being able to talk about projects me and my friends were working on to people outside of our little fangaming community. Because... nobody wanted to. It was an easy way to get dirty looks, because a fangame was often lumped in with, like, Chinese bootleg carts. You were on the same level as, like, Crazy Bus or Super Mario 14. Fangames were illegal piracy.
Which they are, but only in the same way that fanart, fanfiction, and fan music is illegal piracy. I wanted to drag fangames out of the darkness. Get more people talking about them. Prove they weren't this shady, illicit thing. They were fans expressing deepest love for their favorite characters and worlds.
When people read this and think "Oh Kotaku is doing a bad thing by promoting fangames" -- they are not. Things are absolutely better now. It took years of normalization to get this far. Yes, you hear about takedowns more often, but the negative press from such actions is getting louder, and louder, and louder.
The DM in this quote, Don McGowan, even says at the end: "No one likes suing fans." They know they are biting the hand that feeds them. And the more you talk about fangames, write articles about fangames, spread the word about fangames, the clearer that will be and the better things get for everyone. Do not be cynical about this.
Just pay attention to the other thing mentioned at the very end of the quote: "You wait to see if they get funded." As the gig economy continues to normalize creator services like Patreon, SubscribeStar, OnlyFans, I have been watching more and more think they can work on fangames as a job. That is the mistake, and that is what we need to be focusing on as the wrong thing. That is when the line gets crossed and toes start getting stepped on. Creating fangames is not a career. If you love a thing, you do not take away what allowed that thing to exist in the first place. You do not directly compete with that thing. In doing so, you not only put yourself at risk, you put whole entire communities at risk.
Because, again: all of this, by the strictest letter of copyright law, is actually illegal. Fangames continue to exist as loving tributes, not as ways to get rich playing with somebody else's toys for free. In terms of "biting the hand that feeds you", you need to also be mindful not to bite them unprompted, either, you know? Be smart, but always be respectful to the source material and pray for their kindness, because it is and will remain all we have in this arena.
Just pay attention to the other thing mentioned at the very end of the quote: "You wait to see if they get funded." As the gig economy continues to normalize creator services like Patreon, SubscribeStar, OnlyFans, I have been watching more and more think they can work on fangames as a job. That is the mistake, and that is what we need to be focusing on as the wrong thing. That is when the line gets crossed and toes start getting stepped on. Creating fangames is not a career.
this is bullshit, straight up. in fact, it's so bullshit wikipedia has a fucking article on it. they do not wait to see you get "funded". they do not wait to see if you try to make a career out of it. they wait until you get noticed, until you get popular, and then they summarily squash you with a C&D/DMCA takedown. and nintendo isn't the only one, either.
you don't have to take a single dime for you to get targeted. and you know what? fuck it, i'm going to say it bluntly and directly: fangames do involve creating new, original works. if they weren't, they'd be rereleasing the same game. but someone has to go and make new assets, new levels, new story, new whatever. and that's stuff that isn't being done by the original makers.
If you love a thing, you do not take away what allowed that thing to exist in the first place. You do not directly compete with that thing. In doing so, you not only put yourself at risk, you put whole entire communities at risk.
what fan game is so popular that it literally takes away the original. what fan game, released and made by a fan, is going to compete with a multi-billion-dollar game company.
if you love a thing, one of the biggest things you can do is add to it, transform it, build upon it. sharing is caring.
fan games don't have to be things you fucking sue people over. you don't have to hand it to nintendo. you don't have to go "well, sure, it sucks that they delete things, but what can you do".
it also isn't particularly hard to find evidence of doing it better. i'm sure everyone here is familiar with the touhou series. did you know they have an official guide on fan games? did you know it even allows monetization in some cases?
better things are possible and nintendo can fuck itself with a rusty rake. you do not "gotta hand it to them".
Revenue: 1.695 trillion JPY
fan games are not going to make a meaningful dent in this. not now, not ever.
Oh, no, there are absolutely companies out there who still knee-jerk and take stuff down that don't need to be taken down. And while you can (and I encourage you to) point fingers at Nintendo being overbearing on this, I'd like to point out the weird relationship Nintendo has to Pokemon, which is technically what the Aftermath.site article is revolving around.
Pokemon is not like Mario or Donkey Kong or Metroid to them. Pokemon is technically owned and operated through The Pokemon Company. And it's The Pokemon Company where Nintendo has its hooks in -- but it is technically a separate entity, clearly with its own legal team and other things that do not require or involve the Nintendo mothership.
(If I had to guess, it's because Pokemon is such a gigantic cross-media property that they needed to separate it out into its own satellite side company, where it can be safely and exclusively managed without completely devouring Nintendo or Game Freak)
This is specifically why I worded my original post as something we need to hold out against, because I know Nintendo is so touchy about this subject. To some degree, Sega is, too. They just shut down a Golden Axe fangame1. But the tide is shifting. If enough inroads have been made that a Nintendo subsidiary is talking about taking it easy on fangames, perhaps one day that will extend to the mothership as well2.
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I have a feeling this is largely due to the fact Sega just announced their own Golden Axe game, to be fair. They're just being overly-cautious.
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At the very least, it would be nice to get clarification as to why some Nintendo fangames get the axe and others don't. As a reminder, I had a Mario fangame get featured on nationally syndicated cable TV and it probably crested over a million downloads total and I never heard hide nor hair from Nintendo about it.
