By: Nick Neathamer
Has video game fandom gone too far? Despite developing some of the biggest games on the market, Nintendo seems to think it has (at least in a legal sense). The company has recently claimed copyright infringement on multiple YouTube videos that show the use of fan-made modifications (“mods”) for the game Legend of Zelda: Breath of the Wild.
Breath of the Wild is one of the most popular open-world video games in recent memory. Created by Nintendo, the game was deemed Game of the Year in 2017 at The Game Awards. However, one notable element the game is lacking is any multiplayer capability. YouTuber Eric Morino, better known by his channel name PointCrow, aspired to change that. In November 2021, he tweeted out a request for anyone to create a multiplayer mod for the game, offering up $10,000 to whoever could send a functional version. Two members of the modding community were able to create a mod that runs on a Wii U emulator (software which enables Wii U console games to be played on a PC), allowing multiple players to travel throughout the game’s fantastical setting of Hyrule together. On April 4, 2023, PointCrow released the mod to the public through his Discord (however, it has since been removed).
After the release, Nintendo claimed copyright infringement on PointCrow’s videos that feature any use of the mod, prompting YouTube to take down those videos. Due to Nintendo’s reputation for being a highly litigious company, the copyright claims against PointCrow’s videos are not a huge surprise. However, PointCrow has argued and appealed the copyright strikes, saying that he has “significantly transform[ed]” Nintendo’s work and that his videos constitute fair use.
Copyright ownership grants the holder several exclusive rights in regard to their copyrighted work, as laid out in §106 of the Copyright Act of 1976. One of these rights is the right to create subsequent works derived from the original copyrighted work. If someone other than the copyright owner creates such a derivative work, they would infringe the copyright in the original work. Unfortunately for the Breath of the Wild modders, present-day mods have been considered derivative works since the 9th Circuit Court of Appeals’ ruling in Micro Star v. Formgen. While many game developers seldom pursue legal recourse against the majority of modders, and some have even started to embrace the modding community, this derivative work status bars modders from having any copyright of their own in the mods they create. Additionally, if Nintendo does choose to sue for copyright infringement in relation to the multiplayer mod itself, PointCrow and the other creators are likely to be held liable.
Next comes the question of whether PointCrow’s videos about the mod qualify as fair use. Fair use analysis involves considering four factors in a balancing test. Set out in §107 of the Copyright Act, these factors are (1) the purpose and character of the use, including whether the use is commercial; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. While courts must consider all four factors, the first and fourth factors are typically considered the most important in deciding whether an allegedly infringing work is a fair use. The first factor is more likely to weigh against fair use when the allegedly infringing work is commercial. However, commerciality may be overcome and the first factor may weigh towards fair use when the work in question has transformed the original, providing it with a new expression, purpose, or meaning. Here, PointCrow intends to monetize his videos on YouTube, making his use commercial. PointCrow’s claim that his videos have “significantly transform[ed]” Breath of the Wild indicate his belief that the videos are sufficiently transformative to warrant the first factor weighing in favor of fair use, despite their commerciality. One could certainly argue that by providing commentary and reactions to the gameplay, PointCrow has transformed Breath of the Wild by granting it a new expression. However, the entertaining purposes of both PointCrow’s videos and the game itself are very similar, despite the difference in watching a game versus playing it. For these reasons, it is difficult to predict whether a court would find this factor to weigh for or against fair use.
The second factor most likely weighs against fair use. A use is less likely to be fair use when the original work is unpublished, because authors of unpublished works are expected to be able to decide how their work is originally used, or whether it may be released to the public at all. On the other hand, copying of a published work is more likely to be considered fair use. Even more relevant to the nature of the work is if the original work is creative, which tends to weigh against fair use in contrast to when the original work is primarily factual. Here, the second factor most likely weighs against fair use because the original game is a creative work, despite the game’s published status. Meanwhile, the third factor likely weighs in favor of fair use. PointCrow’s videos include actual gameplay, and therefore show large portions of the original game. However, displaying this large amount of the game is necessary to accomplish PointCrow’s intended purposes. Disregarding the legality of the mod itself, PointCrow needs to show gameplay in order to demonstrate differences between the original game and the modded version, as well as to show his unique experiences with Breath of the Wild that viewers want to see. Because of the need to use this large amount of gameplay for his intended purpose, a court is likely to find that the third factor weighs in favor of fair use.
The fourth factor, effect of the use upon a potential market of the copyrighted work, weighs against fair use when an allegedly infringing work provides a substitute for the original. With this in mind, it is not entirely clear what role PointCrow’s videos play in the video game entertainment market. PointCrow would likely argue that his videos are essentially free advertising for Breath of the Wild and Nintendo, while Nintendo may argue that watching someone play the game essentially provides a substitute for playing the game itself and therefore has a negative effect on the market for the game. A court may also be persuaded by the argument that by promoting the multiplayer mod, which runs on an emulator instead of an actual Nintendo console, PointCrow’s videos are indirectly causing a substitution loss to Nintendo in console sales. This makes it more likely, although not certain, that the fourth factor would weigh against fair use.
Despite their best intentions and love for the game, it appears that PointCrow and other fans of Legend of Zelda: Breath of the Wild are infringing Nintendo’s copyright by creating a multiplayer mod. Less clear is whether videos that promote the mod are infringing. A lack of existing litigation surrounding gaming videos only exacerbates this uncertainty. With the upcoming release of Legend of Zelda: Tears of the Kingdom, a direct sequel to Breath of the Wild, content creators are likely unsure how to make gameplay videos while complying with copyright laws. That said, Nintendo’s history of litigation has not stopped fans from making their passion projects thus far, and it certainly seems like fans will continue to create mods and videos going forward. But perhaps the takedown of PointCrow’s videos will finally send the message that despite Nintendo’s success at making games, the company is not playing around when it comes to their intellectual property.
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