(Important) What makes some of the fangames get C&D'd and what makes some of the other avoid it?

[Erenussocrates]

I'm an aspiring pokemon fangame developer myself, and there has been one very essential question that had always been eating away at the corner of my mind, and if we can somehow answer or find somewhat of a common denominator that answers this kinda question, I think everyone like me would be saved a lot of trouble, wasted efforts and terrible heartaches in the future.

So I've noticed that some of the highly regarded pokemon fangames are getting taken down by nintendo -like Pokemon Uranium, Pixelmon mod (even though it's a mod and not a game)-, while some of the other highly regarded and equally famous works are left untouched, even after a long time -like Pokemon Reborn, Pokemon Omicron, etc.-

So naturally that makes me wonder, what really makes some of them survive and the others not? Is there really a definitive answer to this? Is it really all because of "slipping under the radar" or something like that, because I highly doubt it. I'm 99% sure that nintendo knows everything that is going on in pokemon fan community, and they know every publicly announced ongoing fan project. So what makes some of them pass, really? Do anyone have any idea?

I have one friend who is doing freelancer marketing, and he admitted that he is not an expert on law, but still he shared an opinion about how it could be working. What he said was basically "you are fine if you are not living in a country that nintendo doesn't have a branch". After reading through several articles it was also kind of insuniated to me in that way, but it sounds so dumb that I'm taking my own idea with a grain of salt.

So you see this list: https://www.nintendo.com/countryselector
If you are not living in any of those countries, then you have a chance to not be taken down, is that how it works? Is there any fan game that was taken down and was made by a developer outside of those countries?

 

[Deo]

Going to throw in the obvious "I'm not a lawyer", and it's very unlikely anyone in this thread is. Take all of this discussion with a grain of salt.

While not the exact reasons they were taken down, as Nintendo generally doesn't give explicit detail why; we can pretty safely assume Pokemon Uranium and Pixelmon were taken down due to receiving donations. Uranium had a Patreon and was collecting ad revenue, YouTube revenue, and donations. Pixelmon was collecting donations. I'd also wager that the popularity of both had a big part in it in addition to the financial gain. (And as such, we've implemented a rule on Relic Castle that all financial related manners are not allowed. No Patreon, donate link, etc.)

The other fan games you've mentioned that haven't been taken down are fairly popular, but didn't have the main stream coverage that Uranium had. They also don't collect donations or anything of the sort for the projects.

The country thing sounds like a bit of a stretch, to be honest. I think your best bet is just to keep your head down low, and don't make any money. To answer your question though, no, I don't know of any fan game that's been taken down where the developer doesn't live in one of the countries listed. That may have to do with the fact that there aren't really that many take downs, though.

 

[AenaonDogsky]

Aside from the popularity and donation/ad revenue factors that were mentioned above, I think it also has to do with the fact that, many of the fangames that were taken down, had something in them (e.g. title, content, assets) that
could be related to their new releases or remakes. For instance, I'm not sure if Prism was discontinued voluntarily, but notice that the new Ultra Sun and Moon were using "prism" as a theme accompanying Necrozma and
the whole "light" story. The AM2R was taken down because they released a 3DS remake of the 2nd Metroid. Uranium probably was taken down out of sheer popularity though. So if you avoid anything too mainstream and
can guess the direction that new games might be headed towards, you will probably be OK.
If you make a website and call it Pokemonsomething you might also have higher chances of getting in trouble. If your game is called Pokemon BlueJeans, just make sure that your website's address won't contain "Pokemon"
in it. BluJeansFangame or something, for instance.

 

[Erenussocrates]

Okay... I have been busting my head about ways to circumvent/deadlock or minimize the risk of takedowns, and recently I've came up with an idea. What if I created a game using rpgmaker xp and pokemon essentials, but modified everything to the point that there absolutely is no references to the pokemon ID at all. Like everything is changed, from character sprites to tilesets, to monster names and moves etc. And I've presented this game as it is. But then I would release something so called ""mod"" / patch along with this game, that would revert this game into it's original intended self, a.k.a pokemon fangame. I know it would take like, extra tremendous amount of work. But would that really work out at all? I mean, I know they wouldn't be able to takedown my highly modified rpgmaker game, but they could still take down the mod patch I guess?

I also have no idea what I could do about popularity factor though. I mean, if something blows up, it blows up. Entirely dependent on luck, and also on how much you spread your fangame to society, while being safe from C&D is utmost concern, it almost doesn't worth anything if I cannot just share my work with a number of people right? Also, if the game turns out to be really good, then it would have a higher chance to blow up I guess.

 

[Aki]

I'm just gonna start with a link to a post I've made before I start repeating myself.

What if I created a game using rpgmaker xp and pokemon essentials, but modified everything to the point that there absolutely is no references to the pokemon ID at all. Like everything is changed, from character sprites to tilesets, to monster names and moves etc.

If you're willing to do everything original, then you've created your own IP. Why would you mod it to become Pokemon when you've put in so much extra work? You could take that new IP and do anything!

 

[Erenussocrates]

No, that's not the thing. If I wanted to do something like that, I wouldn't even need pokemon essentials in the first place. I could just use regular rpg maker xp and everything. I could have made an entirely different rpg with mechanics that are nowhere near pokemon. I could even scratch rpgmaker and just learn unity instead. What I've always wanted was to implement my ideas that I have wanted so far, and bring a new breath of fresh air to pokemon.

 

[AenaonDogsky]

Yes I assume this could work. You create a game where references to the franchise do not exist, not name, not locations, not mechanics (at least the name of the mechanics), nothing, and then a wild patch appears where
things like that can be applied on top of the original game. Is it worth the extra work? Maybe.

Also Aki's post link contains invaluable information on the topic.
Read it and then decide if it is worth the effort...

 

[TechSkylander1518]

I think it also has to do with the fact that, many of the fangames that were taken down, had something in them (e.g. title, content, assets) that
could be related to their new releases or remakes.

For instance, I'm not sure if Prism was discontinued voluntarily, but notice that the new Ultra Sun and Moon were using "prism" as a theme accompanying Necrozma and
the whole "light" story.

Pokemon Prism isn't about prisms at all, though, it's just a name. And Ethereal Gates used a Fire cat starter one generation before Litten was revealed, and they're doing just fine.

 

[AenaonDogsky]

True. Just to be safe, though, I would try to avoid titles or names such as "Ultra" "Mega" "Shadow" etc... in case they become popular enough,
it might be the tip in Nintendo's C&D Iceberg. Maybe they already had, like, a working title such as "Stars" or "Prism"... maybe there is a trademark or something?

But, anyway, wouldn't Prism be a low priority target due to it being a 2nd gen hack (excuse me If I am wrong), how would it pose a "threat"
to Nintendo? I've no idea :P. That's their reason according to the developer: immense popularity.

And isn't Ethereal Gates demo only? Do you know of any instances where early demos were taken down? Because if such instances do exist,
then I will be even more confused than I currently am regarding all these legal actions. (please, Ninty, leave Ethereal Gates alone, okay?)

On the other side there are other romhacks/fangames which are very popular yet they haven't received any C&D from Ninty.
So, what gives?

 

[TechSkylander1518]

I would try to avoid titles or names such as "Ultra" "Mega" "Shadow" etc... in case they become popular enough,
it might be the tip in Nintendo's C&D Iceberg.

Why? Shadow and Mega have never come up in an official work's title, and no fangame shut down had any of those words in its name. Mega Pokemon were far less relevant in Gen 7 than in Gen 6, and Shadow Pokemon haven't been used in any main series game.

Maybe they already had, like, a working title such as "Stars" or "Prism"... maybe there is a trademark or something?

They didn't. People keep close eyes on what trademarks are purchased by Nintendo, everyone would be up in arms if there was. (Besides, how is Stars relevant to Prism?)

But, anyway, wouldn't Prism be a low priority target due to it being a 2nd gen hack (excuse me If I am wrong), how would it pose a "threat"
to Nintendo? I've no idea :P. That's their reason according to the developer: immense popularity.

Exactly. It was receiving huge amounts of attention. When games get that many people involved, the concern is that more people will be playing the fangame than people buying the official game.

And isn't Ethereal Gates demo only? Do you know of any instances where early demos were taken down? Because if such instances do exist,
then I will be even more confused than I currently am regarding all these legal actions. (please, Ninty, leave Ethereal Gates alone, okay?)

Both Uranium and Prism were incomplete at the time of their release. They had a "full game" in terms of leading up to the Championship, but both games had features that weren't yet implemented. Completeness isn't a deciding factor.

 

[AenaonDogsky]

Why? Shadow and Mega have never come up in an official work's title, and no fangame shut down had any of those words in its name. Mega Pokemon were far less relevant in Gen 7 than in Gen 6, and Shadow Pokemon haven't been used in any main series game.

I'm not implying that, in this case they were used as examples. Say, if your title includes X word, and that word might be in a potential next title, it might be in "more" of a danger, compared
to "Pokemon DirtySock" for isntance. Might.

They didn't. People keep close eyes on what trademarks are purchased by Nintendo, everyone would be up in arms if there was. (Besides, how is Stars relevant to Prism?)

Delta Emerald, Topaz, Crimson, are names already registered. Aside from doing that to protect the brand from competitors or emerging fake games that try to leech off the series etc, they might also do it for
any possible future use of that title. For instance, if Stars was a possible name title, trademarked or not, perhaps Nintendo could be more cautious about a fangame named Stars,
(in conjuction with its popularity, even more so) rather than Pokemon DirtySock. Besides the first seems more "legitimate" than the second, which will result in more people "neglecting"
the main games or being diverted away from them. The second might come off as a "joke game" and the company might think that it's not worth pursuing, since it doesn't "feel" like
a direct "threat". The same goes with Prism, which could be related to some arbitrary or not ingame use. Remember the Delta Episode in ORAS? Well, they had an entire "Delta Emerald" title registered so...
A game called Delta Emerald would have been more of a "threat" before or during the release of ORAS.

Both Uranium and Prism were incomplete at the time of their release. They had a "full game" in terms of leading up to the Championship, but both games had features that weren't yet implemented. Completeness isn't a deciding factor.

Yes, completeness and demo are different things, though. A Demo is just a demonstration of the potential of a game, anything else has some greater degree of completeness than the demo.
I'm not saying a demo does not count when we talk about "completeness", but, I Imagine a 4-5 Gym badge adventure spanning 10-15 hours would be considered more of a "complete game"
than a 1 hour demonstration of battling and catching mechanics. Most Demos have that in the title too, like Pokemon DirtySock Demo. I'm not aware of any
"Pokemon Demo" official title released recently - that doesn't sound as something Nintendo would originally do, which in turns tells someone who sees "Pokemon DirtySock Demo" : "Oh, that doesn't seem authentic".
In that sense, demos, perhaps, would be in a more favourable position when it comes to avoiding incoming C&Ds.

In addition, if, for instance, Ninty is on the watch and as soon as any popular demo appears, they just send a C&D as fast as they can, that says something different about them:
Mainly that they're very, very actively on the watch for any fan creation that might bother them. On the other hand, if they target specific works, (with popularity being a major factor of course)
that tells a different story: They have other reasons to do so, rather than being simply Fangame Hunters. And since we know other games that are, or have been very popular, and have avoided and still avoid
C&Ds and such, we might be able spot other reasons too, besides the aforementioned popularity (which of course, is a major reason for them to do what they do).


I apologize if I'm not clear in what I'm saying. Thank you for your understanding.

 

[TechSkylander1518]

I'm not implying that, in this case they were used as examples. Say, if your title includes X word, and that word might be in a potential next title, it might be in "more" of a danger, compared
to "Pokemon DirtySock" for isntance. Might.

But just about any word could be in a potential future title. There's no set pattern in version names-we've had colors, gemstones, Greek letters, Latin letters, bodies in space, and that's just the main series. There's not really any way to know what's going to be used.

Delta Emerald, Topaz, Crimson, are names already registered. Aside from doing that to protect the brand from competitors or emerging fake games that try to leech off the series etc, they might also do it for
any possible future use of that title. For instance, if Stars was a possible name title, trademarked or not, perhaps Nintendo could be more cautious about a fangame named Stars,
(in conjuction with its popularity, even more so) rather than Pokemon DirtySock. Besides the first seems more "legitimate" than the second, which will result in more people "neglecting"
the main games or being diverted away from them. The second might come off as a "joke game" and the company might think that it's not worth pursuing, since it doesn't "feel" like
a direct "threat". The same goes with Prism, which could be related to some arbitrary or not ingame use. Remember the Delta Episode in ORAS? Well, they had an entire "Delta Emerald" title registered so...
A game called Delta Emerald would have been more of a "threat" before or during the release of ORAS.

Yes, trademarked names are potentially at risk, but they're not a guaranteed problem. Pokemon SolarLight and LunarDark have a strikingly theme in their name as Sun and Moon-and even have a Poison-type named Poipole, created before the official one was revealed-but they haven't gotten any trouble for it. And it's impossible to guess every word that will be used in the future. If the fear of "well, it's not trademarked yet, but it could be" is enough to stop someone from using something, we might as well not use any word.

Yes, completeness and demo are different things, though. A Demo is just a demonstration of the potential of a game, anything else has some greater degree of completeness than the demo.
I'm not saying a demo does not count when we talk about "completeness", but, I Imagine a 4-5 Gym badge adventure spanning 10-15 hours would be considered more of a "complete game"
than a 1 hour demonstration of battling and catching mechanics.

I really can't think of any fangames with demos that just show the basics. Most incomplete games have at least 1-2 gyms, and usually more.

Most Demos have that in the title too, like Pokemon DirtySock Demo. I'm not aware of any
"Pokemon Demo" official title released recently - that doesn't sound as something Nintendo would originally do, which in turns tells someone who sees "Pokemon DirtySock Demo" : "Oh, that doesn't seem authentic".

Demos for main series games have been going on more recently, actually:
https://bulbapedia.bulbagarden.net/...d_Pokémon_Alpha_Sapphire_Special_Demo_Version
https://bulbapedia.bulbagarden.net/wiki/Pokémon_Sun_and_Pokémon_Moon_Special_Demo_Version

In addition, if, for instance, Ninty is on the watch and as soon as any popular demo appears, they just send a C&D as fast as they can, that says something different about them:
Mainly that they're very, very actively on the watch for any fan creation that might bother them. On the other hand, if they target specific works, (with popularity being a major factor of course)
that tells a different story: They have other reasons to do so, rather than being simply Fangame Hunters. And since we know other games that are, or have been very popular, and have avoided and still avoid
C&Ds and such, we might be able spot other reasons too, besides the aforementioned popularity (which of course, is a major reason for them to do what they do).

The thing is, Uranium and Prism weren't just popular in the fangame community, they were popular enough to spread outside of it. They're on a level beyond that of popular games in the fan game community. Reborn and Ethereal Gates are big names, for example, but you won't find their names on gaming news sites like you will Uranium and Prism.

Here's some numbers to make the scope clear:
Uranium received 1.5 million downloads within a week of its release. (Here is a post with the date of its original release, and here is their post a week later, giving the number of downloads)

This video on Reborn received 600k+ views over four years. This video on Prism received 500k+ views over eleven months.


(I hope this doesn't come off as condescending when I put it this way. When you're more involved with the fangame community, it's harder to realize just how popular these games got, because other "big names" in fangames get brought up a lot, too)

I apologize if I'm not clear in what I'm saying. Thank you for your understanding.

It's fine! Text communication can make it tricky to be clear and to understand clearly.

If you don't mind, I'd also like to clarify-I'm not trying to say that people shouldn't be concerned about C&Ds at all, just that such concerns shouldn't limit their creativity. People shouldn't have to drop ideas they like because they're the "wrong" ideas.

 

[Erenussocrates]

Btw, I also don't get the defining lines of "being popular" when it comes to pokemon fangames. Like, from my experience, I've seen many people recommending Pokemon Reborn for it's difficulty and story. And then there's Pokemon Insurgence too, which had been quite popular everywhere around the times the beta was released, many people made it's let's play and stuff. Even though I've heard about Uranium, it didn't strike me "as popular" as the examples I've given. Maybe it's just me.

(Let's not forget to point out that many LP'ers play the fangames and monetize their videos -even if the LPers aren't the developers themselves-. Doesn't that supposed to go against Nintendo's no monetization criteria? Still, those games aren't taken down.)


-- Okay I'm gonna get a bit rambly here --
Cancellation of Pixelmon was the breaking point for me. It was so amazing and the direction they took was so amazing. Words just escape me, and it hurts my soul.

 

[AenaonDogsky]

But just about any word could be in a potential future title. There's no set pattern in version names-we've had colors, gemstones, Greek letters, Latin letters, bodies in space, and that's just the main series. There's not really any way to know what's going to be used.

Yes, I'm not implying setting limits to people's creativity by any means, rather, if there is a chance of a fangame becoming popular, names such as these might be a little bit more "dangerous".

Yes, trademarked names are potentially at risk, but they're not a guaranteed problem. Pokemon SolarLight and LunarDark have a strikingly theme in their name as Sun and Moon-and even have a Poison-type named Poipole, created before the official one was revealed-but they haven't gotten any trouble for it. And it's impossible to guess every word that will be used in the future. If the fear of "well, it's not trademarked yet, but it could be" is enough to stop someone from using something, we might as well not use any word.

That is true, however the aforementioned games were not as popular as others. I understand where you're coming from, and no such fear should exist, but certain names would be better avoided if they're too similar to Ninty's choices,
if they mimic or follow the original "style of new release" too close. I imagine that if these games become popular they might potentially detract more people from the originals (well, that's what Ninty seems to believe, anyway).

Demos for main series games have been going on more recently, actually:

Oh man, you're right, I had forgotten about the 3DS demos. Well, still, would you say that if you were in a company which had to protect its IP, you would consider Pokemon DirtySock Demo more of a "threat" than Pokemon DirtySock?
By definition, it is a smaller "game".

The thing is, Uranium and Prism weren't just popular in the fangame community, they were popular enough to spread outside of it. They're on a level beyond that of popular games in the fan game community. Reborn and Ethereal Gates are big names, for example, but you won't find their names on gaming news sites like you will Uranium and Prism.
Here's some numbers to make the scope clear:
Uranium received 1.5 million downloads within a week of its release. (Here is a post with the date of its original release, and here is their post a week later, giving the number of downloads)
This video on Reborn received 600k+ views over four years. This video on Prism received 500k+ views over eleven months
(I hope this doesn't come off as condescending when I put it this way. When you're more involved with the fangame community, it's harder to realize just how popular these games got, because other "big names" in fangames get brought up a lot, too)

I think you hit the spot there. Of course popularity is a factor, that is something we established anyway, but coverage is another thing. Would you agree that especially gaming news site coverage and massive social media coverage
is another big factor, (and that is not truly popularity related, sure they would cover something popular that is not DirtySock, but that doesn't stop some of the article writers from writing a piece on their preferred fangame).
Of course, coverage brings popularity and popularity is a major reason for coverage. I'm overjoyed that masterpieces such as Reborn manage to avoid these actions, but if you take a look at their website, they don't
even have the name Pokemon on their address. Do you think that all possibilities considered, this in no way shape or form plays any role in directing Ninty's actions?
And don't worry about it sounding condescending, because it isn't. Your input so far has been very valuable to the discussion.

--------------------------------------------------------

If you don't mind, I'd also like to clarify-I'm not trying to say that people shouldn't be concerned about C&Ds at all, just that such concerns shouldn't limit their creativity. People shouldn't have to drop ideas they like because they're the "wrong" ideas.

Absolutely yes! However, as you already know, investing all that effort, love, and time into something and having it taken down would require.... covering all the bases, albeit arbitrary ones, wouldn't you agree?

Btw, I also don't get the defining lines of "being popular" when it comes to pokemon fangames. Like, from my experience, I've seen many people recommending Pokemon Reborn for it's difficulty and story. And then there's Pokemon Insurgence too, which had been quite popular everywhere around the times the beta was released, many people made it's let's play and stuff. Even though I've heard about Uranium, it didn't strike me "as popular" as the examples I've given. Maybe it's just me.

First of all, nice nickname.
And yeah, I wish there was like, a secret guideline from Ninty in our possession. That would make things easier :P

-- Okay I'm gonna get a bit rambly here --
Cancellation of Pixelmon was the breaking point for me. It was so amazing and the direction they took was so amazing. Words just escape me, and it hurts my soul.

I totally understand... I wish they would either leave these games alone, or.... use them in some sophisticated way to boost the main games popularity. I'm not sure how, though.
Either way, I don't think that Gamefreak has the problem, Nintendo does. Besides, there are some people from the Mother franchise within Gamefreak, and if Mother
creator's words are to be believed, they would be pretty open to fangames. But, alas, Nintendo is a huge company, and has to protect its interests first.

 

[Aki]

And yeah, I wish there was like, a secret guideline from Ninty in our possession. That would make things easier :P

You can discover your own secret guideline from official game takedowns. Here's a post linking to Prism's takedown letter (I'm linking post instead of directly for context, you can see the dev KBM confirming it is the real thing) where it specifically mentions things Nintendo noticed.

• An personal website that describes itself as "official"
• An associated Facebook page
• The fact that there was no financial gain; they say it doesn't affect anything, but they did notice

This letter is dated the 21st and they expected removal of the game by the 6th; other than asking for game takedowns there isn't any legal action or threats of legal action here, just asking the dev to stop.


I can't find a link to Uranium's letter right now, but it also called out specific things like what Twitch had said in interviews, and that although the game itself was free, Nintendo knew money had been made (adjacently through ads and stuff) and wanted to know exactly how much.

With Evoas, I know the dev was given a week to takedown the latest demo of the game in specific places (Nintendo knew and named each one); the rest of his personal website full of other games was fine, even though the Evoas demo had to be removed from it.

 

[AenaonDogsky]

You can discover your own secret guideline from official game takedowns. Here's a post linking to Prism's takedown letter (I'm linking post instead of directly for context, you can see the dev KBM confirming it is the real thing) where it specifically mentions things Nintendo noticed.

• An personal website that describes itself as "official"
• An associated Facebook page
• The fact that there was no financial gain; they say it doesn't affect anything, but they did notice

This letter is dated the 21st and they expected removal of the game by the 6th; other than asking for game takedowns there isn't any legal action or threats of legal action here, just asking the dev to stop
I can't find a link to Uranium's letter right now, but it also called out specific things like what Twitch had said in interviews, and that although the game itself was free, Nintendo knew money had been made (adjacently through ads and stuff) and wanted to know exactly how much.
With Evoas, I know the dev was given a week to takedown the latest demo of the game in specific places (Nintendo knew and named each one); the rest of his personal website full of other games was fine, even though the Evoas demo had to be removed from it.

Huge thanks Aki. I've also read your previous post in which you linked the three other forum posts.
So from what you've already provided, we can assume some things such as:
1) Money should never be involved (well, duh)
2) Websites and "official" mimicking stuff are to be avoided
3) Social media presentation (especially wide coverage of the fangames hinting at anything even slightly official, or competing against the franchise in any way) should also be avoided.
4) Popularity status alone is one thing, but, especially in conjunction with the above, poses a great risk factor.
5) Most of Nintendo's actions involve simple warnings first, and C&Ds after, but they do keep their tabs on places where such games can be found.

... is that right?

 

[Erenussocrates]

Okay, thanks for all of your suggestions so far. I'm definitely going to go back to this at some point. Is it possible that we sticky this so that both me and other people can reference to this later on?

 

[Deo]

Okay, thanks for all of your suggestions so far. I'm definitely going to go back to this at some point. Is it possible that we sticky this so that both me and other people can reference to this later on?

A sticky won't really be necessary; while I'm sure this sort of topic is a concern for some, it isn't really required reading.

Given that this thread is about vague legal speculation and that no one here is actually a lawyer, I see it wise to close the thread for now. OP, if you want to discuss something like this down the road, just let a staff member know and we'll re-open the thread for you. I don't think anything useful is gained from leaving the thread open to speculation based on the very low chance of this happening, and how to prevent it. Pretty much everything we know has been discussed in the above.