Super Mario Bros. Remastered coming to PC September 13th

[Bofferbrauer2]

Veknoid_Outcast said:

Bofferbrauer2 said:

The question is: Will this be a free game or a commercial title? And is the art ripped from Roms or recreated in another engine?

Nintendo has let free fangames live, like Abobo's Big Adventure or the recent Zelda II enhanced remake, both because they don't do anything commercial with them and in the second's case because all the art has been recreated from scratch in GameMaker 1.4, so Nintendo can't take a claim on the assets. If this one goes a similar road as the Zelda II remake, then Nintendo probably won't intervene because they don't have much legal footing if the art is original.

This is super interesting to me. So help me understand, because I’m unaware of the legal precedent. Even if the assets are built from scratch, they’re still designed to replicate the characters, backgrounds, level designs, etc. of a copyrighted property, right? And the game still bears a trademarked name.

I understand that Nintendo might not bother because it’s small potatoes — although the level editor functionality could cut into Super Mario Maker’s domain — but I don’t understand how the home-grown assets create a legal loophole.

The main reason for copyright infringement is that you are enriching yourself on the work of others - which doesn't apply if it's free. This is doubly so if the assets are home-made and if it uses a different engine, which in case they look like the original ones can be considered reverse-engineered, which is mostly legal (For instance, it's how AMD copied Intel's 386 and 486 designs in the early 90's even though Intel didn't grant them a license for the chips. Intel tried to protest, but to no avail). At that point only the level design can still be considered copyrighted, otherwise it has become more of a trademark infringement (main characters and game titles are often also trademarked) - which again is more difficult to shut down if it's free.

Btw, this isn't the first SMB remake like this. I was looking for this in my first post but I didn't have the time to look for the game I originally meant to post there: Super Mario Bros. Crossover (though no visual upgrades in this case), which like Abobo's Big Adventure was made in Flash so they're a bit difficult to play nowadays but once you get past this limitation they're perfectly playable games.

However, like you said, the level editor might get them into trouble depending on what is possible to create with it or if people can introduce their own assets - which can bring in copyrighted assets and then get shut down due to them.