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For the past 8 years, I've been working on a Pokémon fan-game. It's been awesome, well-received by players, and I'm very proud of the community we've built. But, as with all things "fan-game", there's always that looming grey cloud of "will a C&D arrive tomorrow?"

Now, I've taken some steps to ensure we're as respectful as possible towards Nintendo's property:

  • We stay as true as possible to the source material. While we have added our own variants and original characters ("Fakemon"), we've made great efforts to keep them consistent.
  • We make it clear that we are a fan-game, not affiliated with Nintendo, and that it is entirely unofficial. I also include a link to a shareholder Q&A (Q14) where Satoru Iwata confirmed that they are not interested in treating people like myself as criminals.
  • Our game concept is original. It's not a clone of any existing game, and I like to think it fills a nice little hole for fans of the series.
  • I (briefly) met C-level people from Game Freak and Nintendo, including Junichi Masuda and Tsunekazu Ishihara, and given them "business cards" for our game. However, it wasn't a formal meeting, rather they were signing autographs at the Pokémon World Championships, so for all I know I was probably just some fan and they didn't pay much attention to the card (they've got enough to do already, right?)

But, all that being said, we're still unofficial, using intellectual property that doesn't belong to us.

My friend and I quit our jobs to work on this game full-time. If we do get shut down, we're going to have to seriously struggle to put our lives back together. So for now, the game has mostly been kept "under the radar", with basically zero marketing and only word-of-mouth of players to keep it populated.

The biggest thing here is that I want to give back to Nintendo. Thanks to them, and to my project, I've made incredible progress as a developer, designer and just as a person in general.

As mentioned earlier, my biggest fear is that one day they'll shut us down. And we'd have no choice but to do so. But it's been 8 years now...

So I'm trying to figure out what options I have, if any. I think what I want to do is to reach out and ask about some kind of licensing, but I don't want to draw too much attention. I don't want to lift my head over the parapet only to have it blasted off, you know? I'm not looking for Pokémon GO levels of attention, or even Magikarp Jump. (Our single server would melt either way - I'm working on it!) Just some way of having actual "permission" to do what I'm doing.

I expect the answer will probably be along the lines of "IANAL, get one", but what kind of lawyer would be best? And any insights or advice besides that would be helpful too.

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  • \$\begingroup\$ Comments are not for extended discussion; this conversation has been moved to chat. \$\endgroup\$ – Josh Aug 6 '17 at 16:18
  • \$\begingroup\$ Nintendo will shut you down if they can. Just look at what happened to Pokemon Uranium: gamerant.com/pokemon-uranium-shut-down-756 \$\endgroup\$ – SethWhite Aug 7 '17 at 16:03
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    \$\begingroup\$ Here's one developer's experience with making a Pokémon fan app (not a game): stackoverflow.com/a/44771870/148241 He was given a take-down notice, and there was no chance that he could get a license. \$\endgroup\$ – Saxon Druce Aug 7 '17 at 16:52
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I don't want to draw too much attention. I don't want to lift my head over the parapet only to have it blasted off, you know?

Either you raise your head and get out, or you starve behind the parapet. If you want to make a living as a game developer, you must get as much exposure as you can. Your revenue is proportional to the number of people who know your game exists. As long as you keep living in fear of getting too big and attract the attention of Nintendo's legal department, your chances to succeed in this overcrowded market are minimal.

As their Pokémon Go collaboration with Niantic shows, Nintendo doesn't seem to be completely against working with other game developers anymore when it comes to their Pokémon IP (Intellectual Property). So if you have a good product, there is a slight chance to convince them. But personally, I wouldn't bet on it.

But even when it turns out that they don't want to collaborate with you, there is still hope for your product.

•we have added our own variants and original characters ("Fakemon")

•Our game concept is original. It's not a clone of any existing game, and I like to think it fills a nice little hole for fans of the series.

You have an original game concept and you are capable of creating original characters. This sounds like you don't actually need the Pokémon IP. My recommendation for you would be to get rid of all the content which is based on Nintendo IP, rebrand the game and build your own franchise.

Maybe soon you will be the one whose IP gets infringed by fangame creators.

A good example of a game which went down that road is Freedom Planet. It started out as a Sonic the Hedgehog fangame. But then they realized that they had a game with original characters and gameplay ideas which was perfectly capable of carrying itself without having to piggyback on the success of some other IP. I would argue that taking this step even improved their game, because it allowed them to do things with characters, setting and gameplay which would not have worked within the confines of the existing Sonic universe. It sold over 250,000 copies. They are currently developing the sequel.

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    \$\begingroup\$ Your third-to-last paragraph is exactly what I was thinking. If you've got a great game with characters, why do you need pokemon? Pokemon is not the only IP in the world that consists of collecting creatures or cartoonish monsters. Be proud to be a creative indie game developer!! \$\endgroup\$ – corsiKa Aug 4 '17 at 20:22
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    \$\begingroup\$ This makes me think of DMCA's Sky, a small fan game originally called No Mario's Sky that was re-branded after a C&D. I'm not sure if this quite compares to a potentially profitable game eight year in the making, but if spitefully changing the name, putting a helmet on Mario's otherwise recognizable head, and making the goal to rescue "Princess Mango" was enough to get Nintendo off your back, maybe there's still hope, but the changes should probably be made as soon as possible, especially since there's money involved. \$\endgroup\$ – tyjkenn Aug 4 '17 at 20:23
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So, yea "IANAL, get one".

However, it seems obvious from your question that your goal is to profit from this game. And the phrase "not interested in treating people like myself as criminals", has little bearing on civil penalties which is your main concern.

Use of a trade mark or IP opens you up to financial damages. And companies have to actively defend trade marks, so they must pursue C&D every time they find an infringement, or they may lose the rights to their property.

My suggestion would be to talk to an IP/Copyright lawyer, one specifically with game industry experience. And be prepared to start replacing all of your assets with original concepts and content.

Also, if you haven't yet, incorporate. Either as an LLC or corporation (dependent on your state), as a means of possibly protecting your personal assets.

It sounds like you're so far invested that you can't take the risk of not getting licensing. Now to be very blunt, if your game's success really hinges on the Pokemon name and content, then you should take a hard look at the game. Don't succumb to the sunk cost fallacy and keep trying to force it.

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  • \$\begingroup\$ Thanks for your input. We are an LLC so that's fine. We are slowly working on our own original concepts (the "Fakemon" I mentioned) that could eventually become our own game characters (they're generally very well received by the players). The game being Pokémon has helped a lot with the word-of-mouth interest in the game, of course, but the game mechanics don't rely on it outright. \$\endgroup\$ – Niet the Dark Absol Aug 3 '17 at 7:59
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    \$\begingroup\$ While trademarks have to be defended, the same is not true for copyright. \$\endgroup\$ – Tim Pohlmann Aug 3 '17 at 13:01
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    \$\begingroup\$ @NiettheDarkAbsol Note that "original concepts" can still be considered "derived works", depending on a number of factors. Even if you take your "Fakemon" into an entirely Nintendo-independent context, the fact that they're based on Pokemon could mean that Nintendo still has a legally enforceable copyright claim over them (or maybe not). -- This is definitely in "consult an IP lawyer" territory - you're dancing in a grey area. If you don't handle it correctly, Nintendo may still be able to legally enforce a C&D even for your "completely original" game. \$\endgroup\$ – R.M. Aug 3 '17 at 14:55
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IANAL, get one

Specifically, you probably need an IP/Copyright lawyer.

From my fairly uninformed point of view (CS background, took some law courses in uni), I'd say that in your current state, Nintendo would certainly have no trouble shutting you down if they wanted to.

It sounds like your game is online, a la Pokemon Revolution Online or something (maybe it's actually that? idk). I don't know how much traction you have - if your peak online player count is something around or below 5000 they're probably not likely going to notice you for some time, but if you grow beyond 15k online players you may have some legal trouble ahead.

It's also worth noting - if they decide to go for you at some point, they could potentially take everything you own, depending on damages, etc.

You need to seriously consider at least these two things:

  1. Incorporation - at least an LLC to limit liability, or else a bad lawsuit will mean you are literally homeless

  2. Licensing - this will (of course) be very complex, but if you have any sort of high goals set for your game, you absolutely need some form of licensing and official acknowledgement from Nintendo.

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  • \$\begingroup\$ I didn't post the game just because I didn't think to, but it's linked on my profile if you want to look. Anyway, Step 1 was completed years ago, so that's good. We're an LLC, so it sounds like we're covered on that front. We do get about 7k online players over a 24-hour period, but "peak" is usually around 1.2k at once. \$\endgroup\$ – Niet the Dark Absol Aug 3 '17 at 7:47
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By the time you can make a living from your fan project, it isn't a fan project anymore.

Nintendo is not one of the (extremely few) Megacorporations that lets the community use their IP to make money. Link to Angry Joe being angry about unusually strict Nintendo IP policy.

Chances are, once they become aware of you, they will go after the money you already earned with this project in the past. Therefore approaching them to license your project may not be the best option, but it would have been a good option before you started to earn money.

Unless you live outside of the US or Japan, there's nothing you can do, other than pay a lawyer to tell you the same thing. If you do live outside of the US or Japan there's a chance you have some protections depending on where you live, where your servers are located, where the companies you work with (paypal? patreon?) are located. Ask a copyright lawyer what these protections are.

If you want to go forward with selling your game, I suggest you create version 2.0 without any Nintendo IP. In any case immediately stop relying on the money you make from IP you don't own, and start treating all the money already earned as something that can be taken away from you at any time (either directly, or through lawyer fees).

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This answer is based purely on common sense, I have no experience with Cease and Decist procedures.

The surest way to get noted by Nintendo is to announce your product, which is essentially what you would be doing by asking them to license you.

Based on the number of legally licensed pokemon games that I have seen around, I would say the chance that they reject you is (much) closer to 1 than to 0.

Therefore I would focus more on risk mitigation, rather than licensing. Here are some things you could do:

  1. Stop making the game (and stop making money from it)
  2. Focus new development on makeing the game as much pokemon independent as possible, so you can switch to a 'normal' game as soon as it would be required
  3. Set up additional companies to protect your assets, for instance one that is making money with pokemon, and one that holds the generic game and its IP.
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I'd follow the good advice from others, and add a twist.

You know that saying, "trust in God and keep your powder dry"? Like that.

If it's reasonable to do so, separate the Nintendo specific stuff (character 3d model,, graphics and scenes clearly representing Nintendo's world, whatever - things they would have a good reason to not be agreeable on), from everything else (game engine and original content). Then run a Nintendo-verse version and a non-Nintendoverse version of the models and world, using the same engine.

Its a bit of extra work but it has a big payoff. Until the sh* hits the fan (if it does), you'll have more to offer fans and you'll enrich your game, and benefit. If your game gets very popular you have a way to "test the water" with gradually channeling the fanbase and game to minimise the Nintendo stuff, without making a sudden huge change that will spoil it for people. You can present it as a bonus - choose original world or new world, 2 different games on the same framework, so until Nintendo get upset (if they do) you can offer both, so you don't have to force people to play one or the other, they're both "out there" and players can choose what they like between them.

Best of all, if one gets shut down, fans already have something to migrate to, you've already got the legally vulnerable stuff separated in the code so you don't have to go back 20 miles to sort it out, just keep them separate from now on in the codebase. So you can offer to take out the stuff they object to much easier, without losing your work, and you don't lose momentum because you've still got the engine, framework and World "B" going fine, so you can tell fans that out of respect for Nintendo, you've shut down world "A" and hope they'll like world B - and as fans tend to be understanding and many will like world B if its not rammed down their throats and not by your own choice, you'll probably have more support not less.

Most of all, peace of mind that even a C&D won't shut the thing and waste your time.

Concrete example in another universe - look what happened to a Windows utility called "Autopatcher". It let users install patches offline. Mixrosoft sent a C&D about including the patches. Outcome - they split the engine from the patch collection, and killed the built-in "bundled" patch collection by having it download the patches from Microsoft servers when run by the user, instead. Same outcome, fans happy, and Microsoft content that users were only getting patches from them, not from 3rd parties. Nintendo, if upset, will be fine if you remove the copyright imagery, and from your point of view that's easy to give them, this way.

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Add me to the chorus of "You need a lawyer" but with an extra reason.

You are not a "fan game". You are a company with income sufficient to (I assume) cover your overheads and also pay enough wages to two staff to be their sole income. How many tens of thousands of dollars a year is that? When Nintendo find you, they will demand that you stop. If you don't close your game down (and quite possibly, even if you do) they will sue you into the dark ages.

Now, suppose you do shut your game down. Your income comes from your paying customers, with whom you have a contractual relationship to supply a service. You just stopped supplying that service. Now what? My guess is that the contract is legally unenforceable because you can't make a binding contract to do illegal stuff. But that doesn't mean they can't sue you: it just means they shouldn't win. You need a lawyer for this, too.

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  • \$\begingroup\$ A very good point, indeed! On your last point, I would suspect that because this is civil infringement and the customer has no way of knowing the business is not legitimate that they would be fine. Also, depending on payment method, they may be able to seek recompense through that route without resort to the courts. \$\endgroup\$ – Jack Aidley Aug 7 '17 at 8:09

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