Can Nintendo now profit off romhacks shown on YouTube?

[Celice]

http://www.escapistmagazine.com/news/view/124066-Nintendo-Suddenly-Claims-Ownership-Of-Many-YouTube-Videos

YouTube has recently reached out to several large gaming houses whose works or content are regularly shown on YouTube, and asked if these gaming houses would like to receive the ad revenue for themselves instead of the ad revenue going to the uploader of the video.

What I thought was really interesting, in this matter, is that Nintendo accepted this. Any video featuring any depiction of Nintendo's content or intellectual property means that all ad revenue will go to Nintendo. What happens in the case of videos or channels dedicated to things like romhacks? Could Nintendo feasibly be making some small margin of profit off the video footage of someone's romhack, simply because, say, there is a popular video showing off FuSoYa's SMW: The Legend Continues? In that case it seems like there's obvious Nintendo content being portrayed (Mario, various characters and items, music, graphic design maybe), but it seems strange that Nintendo could receive ad revenue for a video that isn't showing off Nintendo property exclusively. In the case of FuSoYa, he and his brother were responsible for the level designs, and even some new code.

On an even more ambiguous note, what about some of those super-detailed overhaul romhacks, like Dragoon X Omega II, or Pyron, that aren't really recognizable any longer as being an original Nintendo project, it being modified so extensively? I understand that it may be quibbled that it would actually be Square-Enix or Konami that ought receive the revenue, but the question still stands. Perhaps let's put it in the opposite direction: years ago, acmlm was making a Final Fantasy I hack that changed the world to be based in the Mario universe, using various assets from the Super Mario Bros. games. I wonder if in a case like this, if a video of acmlm's romhack were to become popular enough, would Nintendo actually be able to take revenue from the video, even though it's not their source property (Final Fantasy I is being modified), but acmlm's use of Mario assets would then land the ad revenue in Nintendo's pockets?

I don't think romhacks are really that prominent for Nintendo to even get ad revenue through, but I thought a few uploaders who have chose to monetize their videos, who are fairly popular, and who do play romhacks occasionally, and it might be something to actually occur, Nintendo indirectly profiting off depictions of its property in videos featuring romhacks. And even that, how far does Nintendo's content extend? Retro City Rampage features a bunch of direct and indirect allusions to Nintendo culture and NES history. It's not a full part of the game, but I wonder if these references or nods existing at all would allow Nintendo to pocket the ad revenue generated via the videos?

[Morinis]

This is from what I know so don't take it as 100% fact or a scare monger 

From what I was once told that Homebrews, like Optomon's Pyron for example, is safe as he came up with that concept which means it is a legal copyright by himself.  Though the fact that I do NOT know of is that the game's engine is Castlevania II's 'running gears' might be a different matter though I do not know of how that can be played out in the end.  Other games do share the same and/or similar game engines depending on the developers so he could be entirely safe...unless he's going to sell or make a profit from selling cartridges containing Pyron or set up an online store to sell the ROM.  Again, not an expert on the use of game engines and retails.  Now other Homebrews that does contain characters legally owned by Nintendo they can do something about it as it is their character, or characters, being used.  I know that the creator(s) meant no harm in those particular Homebrews as they show their loyalty as fans but that kind of view cannot be the same on each side of the window.  I can give an example on an experience I had.  When I asked Konami in an email last year about doing a non-profit remake of Simon's Quest on Game Maker they smiled, told me it was awesome that fans still think of the game by showing that kind of support but asked me nicely not to...so I didn't continue that project and never asked again.

Now for ROM hacking is the thing that I can think of is that the stuff like the rest of us do, for example, the graphic hacking of taking characters from their original games into different ones could be a claim as we ARE using those sprites/characters of theirs in our fantasized creations.  Whether they are recolored or not, they still resemble the original character so that part I can see them digging their nails into our backs about it.  A great example is the Castlevania: Opposing Bloodlines ROM hacks since I'm familiar with them.  They contain characters from other games made by Nintendo and not Konami so they can say something about that.

So a long story short, they do have a full right to holler out about content that we use and/or edit because, after all, it is their product that they once sold in abundance that we are changing in the time of here and now.


It all comes down to the big © of Copyright in the end 

[Jedi QuestMaster]

Konami already placed an ad on my Contra translation years ago. And I'm fine with that, as long as they don't put a video ad before it starts, God! I hate that!

[Nightcrawler]

Well, I guess this means they can no longer claim they loose money from fan use of their intellectual property if they're going to profit from it! 

Perhaps one could also take that as an endorsement from Nintendo. Could they take legal action against you if they are profiting from you? I'd imagine that might make for a different spin on things.

[Next Gen Cowboy]

Well, I guess this means they can no longer claim they loose money from fan use of their intellectual property if they're going to profit from it! 

Perhaps one could also take that as an endorsement from Nintendo. Could they take legal action against you if they are profiting from you? I'd imagine that might make for a different spin on things.

I rather like this particular approach, and I think it's a much better way to go about things then simply pulling the video.

[Nightcrawler]

I agree it would indeed be jerky to pull all videos with Nintendo property in them and this is probably a better option. However, it's still not a cool thing to do either. I'm not lawyer, but some of these videos are probably fair use and weren't infringing anyway. It depends on what we're taking about. The potential is there for all kinds of videos including fan games, let's play, spoofs, ROM hacks, translations, reviews, etc. Some of them are going to infringing use and some of them aren't. It's one thing to choose to profit of infringing videos, it's another to do so on a fair use video.

[DarknessSavior]

I rather like this particular approach, and I think it's a much better way to go about things then simply pulling the video.

I agree, but it's harder to see this as positive for people who make their living doing Let's Plays. For example, consider Game Grumps. The fans come to hear their banter while they play the games, not necessarily to watch the game itself.

Should Nintendo be allowed to take away all of their profit for that particular series of videos? I personally don't believe so. That would be like movie makers taking away all of the profits from the Rifftrax guys.

~DS

[Vanya]

I have to say I completely disagree with it in the case of commentary videos. I believe it is fair use and the people putting the time in to make the videos deserve the ad money. Nintendo didn't do a damn thing to produce the video. Sure they made the game, but they were already fairly compensated for the game when the games were bought. This is a bad precedent.

[Next Gen Cowboy]

The question was "can Nintendo profit from showing rom hacks?" My answer to the question was that I thought it was a better idea than pulling videos that infringed on copyrights. I didn't think we were talking about let's play videos and whatnot. Those videos are subject to whatever copyright laws that they're subject to (not my particular field). Now will companies go overboard? Of course it's bound to happen, and it's a shame, but that's probably where it will go.

Edit: Also if (and that's a large if) it doesn't go any further than romhacks, than I think it's a good system. It's a coexistence that will more than likely help both sides, because the person uploading the video in question doesn't have to worry about it being taken down, and the company makes some money off it.

[Celice]

The question was "can Nintendo profit from showing rom hacks?" My answer to the question was that I thought it was a better idea than pulling videos that infringed on copyrights. I didn't think we were talking about let's play videos and whatnot. Those videos are subject to whatever copyright laws that they're subject to (not my particular field). Now will companies go overboard? Of course it's bound to happen, and it's a shame, but that's probably where it will go.

Edit: Also if (and that's a large if) it doesn't go any further than romhacks, than I think it's a good system. It's a coexistence that will more than likely help both sides, because the person uploading the video in question doesn't have to worry about it being taken down, and the company makes some money off it.

Most of the response to this new move by YouTube has been concern for uploaders who profit off their videos; all the work that goes into editing, entertaining their audience, and actually getting the footage no longer feeds into some small amount of profit, but feeds ad revenue into the pockets of whoever controls the intellectual property being shown on-screen.

I just happened to notice, aside from this issue, that it could be a bit interesting as far as fan modifications of intellectual property goes, like romhacks for instance, or PC modding.

However, on your last point: Nintendo has chosen to take ad revenue from anything that depicts their intellectual property. YouTube has also granted Nintendo rights to prevent a video containing their intellectual property from being shown either in certain regions or in all regions. This is also an interesting and somewhat dangerous point--and I'm not even sure what the extent is. If someone shows a video of how to mod the Wii, for example, does Nintendo now have all the rights to lock out that video, if YouTube's identification service recognizes that a Wii is in the video (primarily, not just for a single shot)?

[FAST6191]

If someone shows a video of how to mod the Wii, for example, does Nintendo now have all the rights to lock out that video, if YouTube's identification service recognizes that a Wii is in the video (primarily, not just for a single shot)?

Nintendo have occasionally DMCAed wii mod videos and have done so since the days of the first wii modchips. Granted your point might have been can they do it without oversight but youtube and DMCAing things is not exactly the most taxing thing for the one playing the IP owner.

As for the matter at hand I am not sure, though it not half as common as the mod -> full game route it has happened to more traditional ROM hacks and that would be an interesting case. The only thing close to it I have is layout/typeface for public domain books which I would twist to say as some fraction of the creators work is still visible it falls under unlicensed derived work and could possibly be troubled by the same things the let's play lot are presently seeing.

[WeebeeGeebee]

What about games that were never made available stateside and still have yet to see a VC release?
What about fan performances and remixes of Nintendo and other companies' copyrighted music?

Is Squeenix going to start trying to monetize all those videos of Seiken Densetsu 3?
Is Namco going to start knocking on Renard Queenston's door and ask that they be compensated
for his use of the title theme from Splatterhouse 3 in one of his remixes that he released under his
alias, Truxton? - http://www.youtube.com/watch?v=tOmI7HLDYY4 -- 0:45

Are Ninty and others going to start scouring 8bitcollective looking for reworkings of their
stuff so they can send cease and desist letters or "give us our cut" letters to people?

I just happened to notice, aside from this issue, that it could be a bit interesting as far as fan modifications of intellectual property goes, like romhacks for instance, or PC modding.

Orrrrrrrrrrr.... controller adapters. The last thing I want is for Mayflash to get Lik-Sang'd
because Ninty saw mine or someone else's video of a PC USB adapter for one of their
peripherals and decided to crack down on them for "illegal reverse engineering."

[henke37]

The later is not gonna happen, because it is legal to create adapters.