Nintendo To Fansites: Don't Advertise Our Games For Free (Updated)

Nintendo’s legal team is on a quest to stop Pokémon fan sites from posting screenshots from its games.

Kotaku reports the gaming monolith has gone after at least two sites for using images of the upcoming DS games Pokémon Black and Pokémon White, threatening to shut the sites down under the Digital Milennium Copyright Act unless the offending photos were removed.

One of the sites, PokéBeach, renamed itself PokerBeach after it received this salvo:

We recently learned that you have posted screenshots and other protected content from the Pokémon Black and Pokémon White games to your website at http://pokebeach.com. While Nintendo appreciates your interest in and support of the Pokémon game series, your publication of this content infringes Nintendo’s copyrights in violation of federal law. Your activity also and has the potential to cause substantial damage to Nintendo, and leaves Nintendo with no choice but to take steps to protect its intellectual property rights.

Fansite Serebii received a similar talking-to.

As Kotaku points out, Nintendo lets other video game sites run wild, posting scores of screenshots and videos. We contacted Nintendo’s PR agency for comment and here is the response from Nintendo of America’s senior director of Corporate Communications:

Nintendo supports and appreciates the efforts that Pokémon fans go through to create fan sites. In most cases there is no issue with the content that is posted, but on this occasion we had to contact a select few websites to ask them to take down confidential images.

Report: Nintendo Threatens Pokémon Website For Showing Pictures Of Pokémon [Kotaku]

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  1. theblackdog says:

    Overzealous lawyer, or is this a case where Nintendo has to issue these or risk losing a trademark or copyright protection?

  2. y2julio says:

    Do they really have any authority? Wouldn’t it be fair use for educational purposes?

    • Venality says:

      Although I don’t doubt that you can claim helping someone through the game is ‘educational,’ how is this in anyway truly educational? It’s a fan site.

      • ParingKnife ("That's a kniwfe.") says:

        Educational means it’s informative. In this case it could be the deciding factor in whether or not someone chooses to purchase the game. It could be seen as any other consumer review. The fair-use doctrine also looks at degree of reproduction. They’re not putting the game up for download- stills of the game do not harm the makers of the game. And even if they used a ROM, it’s actually a separate issue, since fair-use does not take into account how the material was obtained.

        • domcolosi says:

          There’s more to it than that. To be fair use, something like this has to agree to all four fair use points.

          Of interest here is whether this hurts Nintendo’s marketing rights. If it does, the educational value is irrelevant.

          • ParingKnife ("That's a kniwfe.") says:

            Nintendo’s marketing rights? I’m not even sure that’s a thing. The question is:

            “the effect of the use upon the potential market for or value of the copyrighted work.”

            in conjunction with not isolation from the other factors. It’s more about whether they’ve made it unnecessary to buy the game by presenting an alternative, not whether they’ve discouraged people from buying the game because it’s somehow cast in an unfavorable light.

            • Venality says:

              Could they make a roundabout argument that by taking screenshots of a ROM highlights the fact that a ROM is available, therefore it discourages people from buying the game?

              • ParingKnife ("That's a kniwfe.") says:

                They could make the argument, but they’d have to prove it. Proving it had an impact in that regard is nigh impossible- primarily because it’s not true. It’s not as if the people who make the website run around saying it was a ROM.

                • domcolosi says:

                  Benefit of the doubt goes against fair use, though. If Nintendo could convince a judge that it might hurt their sales, they’ve got a good chance of winning the injunction.

          • rjaguar3 says:

            The four fair use factors “do not represent a score card that promises victory to the winner of the majority” (Video Pipeline v. Buena Vista Home Entertainment, 342 F.3d. 191 (2003))

            On Nintendo’s side, the fact that the game hasn’t been published yet does weigh against the second factor. Nintendo may also have a case that the prerelease screenshots supplant demand for promotional materials about B&W that Nintendo might make, which would cause the fourth factor to also be neutral or side with Nintendo.

    • Kitamura says:

      I dunno, when you rip what amounts to pretty much every single new sprite from the game to put on your web site, is that fair use?

    • The Marionette says:

      Unless you plan on doing your mid-term paper about pokemon black and white then this wouldn’t be a situation for fair use for education purposes.

      Also I can kinda see why they wouldn’t want the fan site up. I’m not legal consultant or lawyer, but I’m sure it’s because for one someone could make claims that nintendo is making free advertisements on that site.

  3. C.Walker says:

    I don’t know anything about copyright, but I do know I wouldn’t go to a website with the address pokebeach.com. Without the accent it’s just a cheap porn site.

  4. Rectilinear Propagation says:

    UPDATE 2 – Jon Sahagian from PokeBeach tells us that while actual copies of the game are currently shipping to his staff from Japan, the images in question posted on his website were taken from an illegal ROM copy of the game, hence Nintendo’s action (though we have yet to hear back from Nintendo of America on the matter).

    It’d be nice if the original take down notice pointed that out.

  5. There's room to move as a fry cook says:

    Note – the letter does not ask for take down of ALL Pokeman images – just screen shots from the new Pokemen Black and White – a new game that was just released 2 days ago in Japan.

  6. ThunderRoad says:

    Draw mustaches on all of the characters and claim parody protection.

  7. diasdiem says:

    A wild fan site appears!
    Nintendo uses “Cease and Desist!”
    It’s super effective!

  8. JKxZ says:

    So can we just get this game on the iPhone already and call it a day? The Gameboy (DS) line is on its last legs, great for kids, not great for adults that are still kids inside…

    • Destron says:

      The DS is hardly on it’s last legs… it is the best selling game platform out there. And the 3DS will be out by this time next year.

      Pokemon is a Nintendo IP, you will never see it on anything BUT a Nintendo console.

    • Preyfar says:

      When Apple discovers things called “buttons” which make gaming fun… then maybe I’ll consider my iPhone a viable gaming devices. Until then, “smear the finger grease in a circle” is really not that fun, and touch screen gaming is just far too limited for anything more than an overly simplistic game that’s best enjoyed by casual gamers.

    • sqlrob says:

      Last legs. Yeah.

      August 2010 NPD sales:
      * Xbox 360: 356,700
      * Nintendo DS: 342,700
      * Nintendo Wii: 244,300
      * PlayStation 3: 226,000
      * PlayStation Portable: 79,400

  9. masso says:

    Consumerist is never going to update the fact that the website was using illegal rom, is it?
    That’s it was sent the letter, they were using picture from playing illegal rom.

    • Blow a fuse? I can fix that... says:

      Why would that matter? The use of the picture is either fair use, or it isn’t. As best as I understand the relevant laws, it wouldn’t matter if they screenshotted a pirated copy, a copy shoplifted in Japan or a bought copy.

  10. dush says:

    I would write back asking for documentation of what the substatial damage would be.

  11. dush says:

    Aren’t all the pokemon names trademarked? I’m surprised they even let the serebii.net site name exist.

  12. Spooky says:

    Where is Nintendo learning there advertising, The RIAA?

    Why would you sue people that are fans of your product and create a social community around it. That is so many sales that they are fucking with.

    • Christine says:

      Yeah….. sometimes companies just amaze me…. my son is waffling between an Asperger obsession on Bukugan and Pokemon….. perhaps I will sway him towards the exploding spheres… I mean really…. how sad.

    • madmallard says:

      Try again. If anything, the RIAA has learned a thing or 2 from Nintendo about IP. Remember Tengen? Game Genie?

    • Brink006 says:

      Except this site obtained images via an illegal ROM, which does two things:

      1 – Makes illegal ROMs valuable to third party sites
      2 – Creates an unfair marketplace for all other fan sites who don’t support illegal roms

  13. Worsel says:

    The sites in question were getting their images from roms. Pokebeach admitted it and serebii posted information that implied he was getting his images from roms. Specifically, he commented on not getting experience early on, which is one of the anti-piracy measures in the game.

  14. Bladerunner says:

    It doesn’t matter if the ROM was illegal. The reviewers weren’t playing it except to get screenshots/review purposes. The illegal ROM is a problem that they can be sent a letter for, but a “stop playing the illegal ROM letter”…the website was posting factual images as fact. Where the images were obtained does not factor into a DMCA notice, only whether the information is valid to be put out publicly. These images are perfectly fair use, and they made no real argument for pulling it down.

    • LightningUsagi says:

      Nintendo has always taken a very strict stance against bootlegging products. They have also threatened legal action against sites who had pictures of counterfeit toys. In their eyes, turning a blind eye to it is the same as allowing it to happen.

      If a site as popular as Serebii admits to using a bootlegged game and is not stopped, Nintendo is sending the message that they don’t care. And that can, in the end, cost them lots of money when people feel ok in going for bootlegs instead of paying for the real item.

      • Bladerunner says:

        That may be so…and they can and should fight the bootlegging. But the point is that the images themselves are not somehow different for having been bootlegged. It is fair use to post them, period. Maybe they should have sent a letter saying “Thanks for the review, now if you could go ahead and destroy the bootleg you used to make it”, then I wouldn’t have a problem.

  15. sopmodm14 says:

    free publicity to get pre=orders is bad for business ?

    nintendo does not compute it seems, lol

  16. drjayphd says:

    So I guess Nintendo doesn’t want to let them… (dons sunglasses) show us their Pokémans.

    YEAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAH

  17. masterage says:

    What’s odd is that Nintendo of America sent out the letters, and only to the US-based sites.

    Something’s odd about the entire thing, actually. Even if the pictures were taken with a ROM-build, not all of them were, with the pictures released in magazines/online also affected.

    It’s just a stupid move on the lawyer’s part. No matter how you look at this, it’s negative PR.

    Hell, the only way this makes any sense is that Nintendo is wanting a massive marketing push and the fansites would, somehow, be in the way of that. Maybe an official wiki is in the works?

  18. Geekybiker says:

    Its fair use. Bloggers are entitled to the same rights and protections as dead tree media journalists. If you’re using pictures for the purpose of reporting on the game you can tell them to shove it. However the cost of defending a suit even where you win…….

  19. dragonpup says:

    Yea, on the subject of Nintendo’s trademark enforcement… http://www.penny-arcade.com/comic/2004/10/29/

  20. VeritasNoir says:

    Aaaaaaand this is reason #42 why Nintendo is the biggest joke of the gaming world.

  21. Dyscord says:

    Retarded. They can let professional sites go wild, but not fan sites? The majority of those pictures are from Nintendo themselves so it’s not like they’re pirating the game.

    This is just plain stupid.

  22. DeathByCuriosity says:

    Gotta love how these unethical idiots are acting oh so persecuted.

    I’ve worked in game journalism for years and run a own game news/reviews site with some friends. Anyone in that business can tell you that you never use illegal roms and you never violate NDAs. The idea is to stay in good graces with game companies so that they’ll send you free review copies and whatnot.