11/06/2006

I Just Got A Cease And Desist Letter From…. Nintendo

by Matthew Hawkins

Kinda.

My regularly planned entry about this past weekend will have to wait a bit, due to this image (NSFW).

Its from the very first i am 8 bit show, circa 2005. Some of you might recall seeing it, along with several others pictures of numerous other pieces a whiles back. The image has been there since last spring and I haven’t head anything about it, at least nothing negative. But earlier this evening, I got the following email…

So its not directly from Nintendo, but some outfit called Cyveillance, an “internet monitoring agency”. Anyway, let’s break down the image.

First and foremost, its a piece of art. I’m no lawyer, but as far as I know, at least from what I recall from art school, artists do have some breathing room when it comes to depicting fictional characters, even those that are trademarked and copy-written, such as in the instance of parody or satire.

Second, and I’m not saying this to pass along any blame, but I didn’t create the artwork, some other artist did. One that I originally credited in my overview, but a friend of mine now feels may not be the proper one identified (hence why I am not passing it along here, though for anyone who’s curious, I guess its pretty easy to check who I listed).

I am willing to bet that the correct name is listed in the art book that was published not too long ago which compiled all the pieces from the show (as well as the second one from this earlier year as well I believe). So that same offensive image might possibly in print… is Nintendo going to go after the publisher or the folks behind the show as well? And the artist?

Thirdly, it’s a photograph of a piece of art. It’s not even the original, just a reproduction (and not even the best one possible). Also, I didn’t even take the picture, a friend of mine in LA did! Once again, I’m not saying this to pass along any blame, I’m just pointing out how silly this is! One more thing… take a look at the picture… is it that obvious that it’s Mario and the princess? Okay, I know that’s totally up to interpretation, but that’s the thing: it’s up to interpretation!

And how is this image any different from all the wacky Photoshops that you see on gaming message boards across the net, which as we all know, have far harsher depictions of Mario and company.

My reaction might seem a bit silly… maybe I should oblige and take it down. After all, I didn’t even create the piece, and this point, I’m not even totally sure who the original artist is! But I just have to wonder, given how ridiculous the request is, if Nintendo and the company representing them has any legal ground to make a request. And not to be dramatic, if so, then what’s next?

If anyone out there could do me a huge favor… if you have the i am 8 bit book, mind checking and seeing who the original artist is? Thanks in advance.

EDIT: So I decided to pass along this news to a few message boards. Here’s what others are saying over at Insert Credit and The Gamer’s Quarter.

Oh, and here’s my post over at the Gaming Age Forums, which got me banned. HA! Granted, it was foolish of me to post without passing along a NSFW warning, but come on… not surprisingly, most folks missed the point completely, and the first person to chime in with any sort of reason is number #30.

EDIT #2: So the artist cited on the original page was indeed correct. It’s Jason Sho Green alright.

Here’s the confirmation, as well as a better look at the piece, via the i am 8 bit art book, courtesy of Amazon. And as you can all see, the image is copy-written! Hey Nintendo, time to give the lawyers a call.

  • http://www.yaytime.realmsend.com dave roman

    If you ran the photo editorially you should be fine. Sometimes these companies they hire go overboard.

    Did you read about Rich Steven’s recent letter from Lucasfilm’s lawyers?

  • http://www.sourharvest.com somakitty

    hi matt! saw this on your lj and thought i’d pop in to read the rest. i recognize that picture. ;)

    shoot me an email if it’s anything i need to know about. i saw the curator of the show over the weekend and i’m sure she’d love to hear nintendo is harassing her patrons.

    ~leah

  • http://www.johngreenart.com John Green

    Lucasfilm had a case because Rich was making money off SW images and names.

    Matt’s not making money off of that image, and it seems its not the image itself that bugs them, but that kids might find it if they do a web search for Nintendo, Mario or Peach.

    Now, I think it should be fair use for a website that does news coverage of videogames to use related terms in their page tags, but that’s what they want you to remove. You need to ask yourself which would hurt the site more: remove the image, or remove the tags? You could remove the image and they’d still want you to remove the tags.

    Either way, I don’t think their request hold any water. Your a news site, basically, so you need to make reference on your site to videogame companies, games, and characters. And this image was from a videogame related exhibit.

    And videogames aren’t just for kids. So if that means you need to add an intro page to your site “Warning: may containt explicit content, enter only if you are 18 or above blah blah blah” then that might be something you’d have to do, if it comes to that.

  • Jason

    This thing is flawed on a few levels.

    First, they can’t even petition you properly using “Hawkins” as your first name.

    The letter holds no force of law (revealed by their “ask[ing]” you to remove the potentially offensive image).

    You’re not using any Nintendo trademark. If anything Nintendo might try to pursue the original artist (certain to fail as well).

    Finally, the notion that the image they found was tagged as part of a sexually explicit website. Wii could all start posting images of cow dung and tag it with “Nintendo” and thus drive searches to that image.

  • http://www.johngreenart.com John Green

    Did they complain to Penny Arcade about this?

    http://www.penny-arcade.com/comic/2006/09/07

    Seems like a parent wouldn’t want their kid to come across that, either.

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