For the gamers among you, you might be interested in–and have probably already heard about–Super Mario Bros. Crossover, a fan-made game where players can run through the entire original Super Mario Bros. Nintendo game as Mario, or as five characters from other video game franchises: Link from the Zelda series, Mega Man from the Mega Man series, Bill R. from the Contra series, Simon Belmont from the Castlevania series, and Samus Aran from the Metroid series. Sounds like fun, right? Even the Washingon Post‘s Ezra Klein weighed in on the game.

But this isn’t a blog or a website about video games, and while my inner-child thinks that this game is a blast (as a child of the 1980s, playing through this game as other characters probably crossed my mind ten times a day), the lawyer in me saw huge red flags. In other words, given the intellectual property implications of mashing together the work of others, I wouldn’t be surprised to see the game’s creator Jay Pavlina receive some cease-and-desist letters in the mail very soon.

The problems? First, each character is a trademarked property: Mario, Link, Samus, and their respective franchises belong to Nintendo; Mega Man belongs to Capcom; and Simon Belmont, Bill F., and their respective franchises belong to Konami. Second, video games are protected under copyright. This protection, among other aspects, extends to the games’ code itself, which Super Mario Bros. Crossover likely appropriated in both its use of the original Super Mario Bros. game and each character’s individual mechanics. And third, Pavlina took great care into making this game, including details such as the music, which changes to a theme from each character’s game depending on the level and the situation. Seeing as how the advent of the Internet and file sharing has transformed the landscape of the music industry, I wouldn’t be surprised to see that Pavlina’s appropriation of this music will also be an issue should the copyright and trademark holders involved take action.

This begs the question, Does the doctrine of fair use protect Pavlina and Super Mario Bros. Crossover? Section 107 of the 1976 Copyright Act defines “fair use” as “including such use [of the works] by reproduction . . . for the purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.”  Such uses are “not an infringement of copyright.”  In order to determine whether a use is fair use, a court must consider “(1) the purpose and character of the use . . . (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.” Under these factors, and especially factor three, Super Mario Bros. Crossover fails under the fair use assessment, although it is arguable that, because Pavlina is not seeking to profit from the game, his use is fair. As Chris Kohler of Wired points out, “My advice would be to immediately start tweaking it into a parody.”

Another possible potential defense is that Super Mario Bros. Crossover is a derivative work, defined in Section 101 of the Act as “a work based upon one or more preexisting works.” Derivative works are protected, but according to Section 103(a), “protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” Further, under 103(b), “copyright in a . . . derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” The copyright in the preexisting material exists separately of that in a derivative work. What this means is that the game as a whole, as put together by Pavlina, may be a protected derivative work . . . but only if the copyright in the preexisting material was lawfully used. Based on what we know, this does not seem to be the case.

Super Mario Bros. Crossover is certainly a unique game, and a very interesting product from an intellectual property standpoint. While I am a staunch believer in intellectual property rights and would not fault Nintendo, Capcom, or Konami for asserting their copyright and trademark claims, I am also a fan of creativity, and I believe that it should not be punished. If the video game companies were smart, they would recognize a clever and, quite frankly, flattering fan-made labor of love when they see one, and perhaps snap up the rights to it and offer it on the Wii Virtual Console. This would engender good-will amongst the gaming and Internet communities, and show that the video game companies are hip to what their fans consider worthy products. It would also give them good publicity.

My one question, though: whatever happened to Luigi?

Bill R. · Boston IP Lawyer · Capcom · Castlevania · Chris Kohler · Contra · copyright · Copyright Act of 1976 · derivative works · Ezra Klein · fair use · Jay Pavlina · Konami · law · Link · Luigi · Mario · Mega Man · Metroid · music · Nintendo · Samus Aran · Simon Belmont · software · Super Mario Bros. · Super Mario Bros. Crossover · The Legend of Zelda · trademark · video games · Washington Post · Wii · Wii Virtual Console · Wired · Worcester IP Lawyer

3 comments

<< Record Companies Can Subpoena Your ISP

Free Legal Advice for Veterans at the MBA >>