Legend of Zelda Mod Drives Nintendo IP Lawyers Wild

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. 


By: Carl Rustad

Youtube Hate Preachers Share Screen With Household Names.” “Google’s Youtube has Continued Showing Brands’ Ads With Racist and Other Objectionable Videos.” These are the headlines Google faced in March 2017, as ads for Google’s advertising partners allegedly appeared alongside hateful or inappropriate Youtube videos. Within days, high-profile advertisers including Wal-mart, Pepsico, General Motors, AT&T, Dish, and Starbucks all pulled their ads from the platform

Google responded to these allegations by “implementing broader demonetization policies around videos that are perceived to be hateful or inflammatory” and “strengthen[ing] advertiser controls for video and display ads.” Using algorithms, Youtube “automatically weed[s] out inappropriate content,” sorting each uploaded video into categories purportedly reflecting their desirability to advertisers. Advertisers can exclude videos from categories like “tragedy and conflict,” “sensitive social issues,” “sexually suggestive content,” “sensational and shocking,” and “profanity and rough language.” Clearly these options reach far more content than the originally-complained-of hate speech. Videos determined inappropriate for advertisers are “demonetized,” meaning ads will not appear on them, they are deprioritized in search, and content creators will not receive any ad revenue from the video. The resulting drop in ad revenue is referred to as “Adpocalypse.”

As a result of these efforts, Youtube claimed “many advertisers have resumed their media campaigns on Youtube,” but also acknowledged that content creators faced “revenue fluctuations” due to demonetization and promised to provide “more detail around advertiser-friendly guidelines.”  Meanwhile, some content creators on the platform claimed to see an initial 80 percent drop in ad revenue due to demonetization, leveling off to a “40, 50, 60 percent drop” as videos were deemed not suitable for all advertisers. Prominent vlogger Vlogbrothers opined “[demonetization] has really squeezed creators who are making content that’s maybe good, but not, like, super-happy-family-fun-time stuff.”

Private Platforms Provide Strong Extralegal IP Protections

Adpocalypse demonstrates both the interest and the power that companies have in protecting their brands on private platforms. Brands are already entitled to certain legal protections. A trademark holder is protected against damaging associations in several scenarios, including when unauthorized use of their trademark causes confusion as to the source or sponsorship of a product, or tarnishes the brand by association with “unsavory” ideas. See AMF, Inc. v. Sleekcraft Boats; Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC. On the other hand, there is no trademark infringement when the trademark is being used to describe a product or talk about a competitor’s product. See KP Permanent Make-Up Inc. v. Lasting Impression I, Inc. These are considered “fair uses” of a trademark.

But the companies on Youtube, of course, do not have to point to their carefully balanced intellectual property rights in order to control their representation on the platform. They can simply refuse to advertise on a platform if it tends to associate their brand with any less-than-ideal content. This is not a new phenomenon. Media has long catered to advertisers, with media scholar C. Edwin Baker claiming “the greatest threat of censorship in this country comes not from the government, but from advertisers . . . .” As online platforms mediate a steadily increasing amount of our time, advertiser censorship may become correspondingly more pervasive and omnipresent. With algorithmic and computing advances, such censorship can be systematically extended to hosted individual speech as seen in Adpocalypse.  

Real Time Content Moderation: The Future of Advertising? 

Adpocalypse concerned advertisers’ association with undesirable uploaded videos, which are scanned for content and demonetized and search deprioritized if they are deemed unsuitable for advertisers. This hawkish breed of moderation is enabled by advances in automated decision making. Over 500 hours of content are uploaded to Youtube every minute; each video must be scanned and categorized as safe or unsafe for advertisers. 

Platforms are now facing pressure to provide real time moderation to prevent violations of their terms of service by censoring disinformation, incitations of violence, and other abuses. Facebook Horizons already includes real time moderation features  allowing it to instantly deplatform or censor abusive–as determined by Facebook alone–virtual reality users. The advantages of such a system are obvious. Hate speech, harassment, and other universally-condemned behavior can be taken offline before it happens. Unfortunately, the concerns real time moderation raises are just as obvious. 

Platforms will continue to compete for ad revenue. As Adpocalypse demonstrates, online platforms are not simply censoring hate speech; they are beginning to censor anything not “advertiser-friendly”. Allowing fine control over the spaces in which advertisers’ products appear, not just how their ads appear, is a profitable course of action. One easily foreseeable use of real time moderation is to limit the visibility of advertiser-unfriendly speech in VR chat. But there is no reason to believe the technology will be confined to such transparent and simplistic uses. Facebook already sells sophisticated and hyper-targeted ads. Plus, US advertisers are willing to pay about $250 billion a year to control what consumers associate with their products. The market is there.

Given the impending capability and incentives for online platforms to moderate speech and the environment of speech in real time, it is time to take a hard look at the role of advertisers in platform censorship. While the First Amendment does not apply to private platforms, consumers should demand transparency from platforms about how speech is moderated and hold them accountable when moderation technology is abused to accommodate advertisers. 

The Key to the YouTube Advertisement Crisis: an Improved AI

maxresdefaultBy Derk Westermeyer

A little over 4 years ago, comedian Ethan Klein uploaded his first video on his YouTube Channel, h3h3productions. That video’s premise was about how people use toilet paper. While this type of comedy may not be for everyone, Ethan’s channel has largely been a success. Since that first video, Ethan has uploaded hundreds more videos to his channel, a large portion of which generate millions of views each. Continue reading

YouTube’s Content ID Policy Change Now Saves Lost Monetization for Fair Use Videos

youtube-cashBy Dan Goodman

As the late Notorious B.I.G. said, “Mo Money, Mo Problems.” Whether you believe that statement or not, it is certainly, and thankfully, becoming less true the world of monetizing videos on YouTube through fair use.

The issue of fair use in regard to Content ID claims and Digital Millennial Copyright Act (“DMCA”) takedown notices continues to be a hot topic in the world of YouTube. Most recently demonstrated in Lenz v. Universal Music Corp., the Ninth Circuit held that copyright holders must consider fair use and have a subjective belief that the material in use was in violation of copyright law before sending a takedown notice.

Continue reading

Fair Use: YouTubers Claim Copyright Infringement Lawsuit Against Them is a Goof

KleinsBy Jeff Bess

YouTube has come a long way in the decade since its founding as the Internet’s hub for one-off viral clips and cat videos. As of last month, YouTube reported that it reaches more viewers in the coveted 18-49 age group during primetime than the top ten TV shows combined. This is due in large part to the vibrant community of original content creators – some of whom individually drive enough traffic to make themselves millionaires – that host and share their videos on YouTube’s platform.

YouTube’s explosive growth as commercial and expressive medium has naturally brought with it a greater likelihood of legal disputes, particularly with respect to copyrights. Take for instance popular YouTubers Ethan and Hila Klein, the couple behind the comedy channel H3H3 Productions. They have built a following of nearly two million subscribers by making videos commenting on and making fun of other YouTubers’ videos. Continue reading