Pirez wrote:Which they will laugh at, totally disregard and reissue their strike the following second. Not the fairest treatment, sure. But that's how big companies respond.
If they want to laugh, they can laugh how much they want, but the only way to keep it down if person denies C&D letter is if they win court case. No company ever dared to sue individual for fangame and there is a reason for why.
Pirez wrote:Super Mario is a character and a brand. Both of those can be (and are) subjectted to intellectual property. No need for refreshment on this part.
Unauthorized =/= illegal. Words by Attorney Patrick McKay
Just because someone used Mario IP without permission doesn't automatically mean they violated copyright law. Adsolution is making ROTD and that game is infringing 0%
The way how and on what way somone's IP is used is important. If using someone's IP without permission is automatically infringing, then lawsuits wouldn't be long processes and instead they will be over within a second.
Pirez wrote:You could make the argument that is game is not a "fangame" but "plagiarism" due to the fact that it is supposed to be a replica of SM64. Nintendo may have been scared that the project expands and ends up being a full HD replica of SM64, distributed on non-Nintendo platforms for free. You would argue that acquiring a replica for free would encourage you to buy the original, and I would answer that nobody I have ever known fucking does it.
Plagiarism is the "wrongful appropriation" and "stealing and publication" of another author's "language, thoughts, ideas, or expressions" and the representation of them as one's own original work
The HD Remake maker never said that Mario 64 is his original work and he did aknowledge the original game made by Nintendo , therfore argument for plagiarism is not valid. If Nintendo was scared of this becomming full HD replica and damaging the sales of the original game, then they should have follow progress of this for a few months and if huge progress was made, they should propose to adapt the remake for Wii U. Capcom did same thing for fangame Street Fighter X Mega Man.
Nintendo has right to fear of that, however they have 0 evidence that author ever intended to replicate the whole game and put it online for free. It can be argued that this is just a small tribute to Mario 64 and showing creative vision of alrady existing game. When analyzing four factors of fair use, the last factor is called "The effect of the use upon the potential market for or value of the copyrighted work."
There was no potential market for a small demo, if anything, playing 1 level could encourage people to buy game to play more levels. It is more than clear that the lawsuit case regarding this demo is something Nintendo cannot win in any way.
Now if they sued him and he already released full replica for free online, that is completely other case.
