Nintendo On Inappropriate Use Of Its IP And Games: "Action Must Be Taken"

Nintendo own the biggest and the best IP in the whole industry. They are right to protect it at any cost.

Fans can still do their projects... just stop sharing it on the internet and making money off it from donations and advertising.

sighs
I feel like Nintendo is going too far with this...the stuff where people are making money off of stuff I get, or remakes of official games...but fan games, mods...even fan art...just...leave them alone...

Nintendo, like any company, should protect their brands. And honestly most fanmade stuff is still alowed. Except when people start to profit off of it. Because that's not fanmade content, that is pure piracy.

Are they talking about fan art too?

Here in Amsterdam there is a smartshop that sells weed and other types of drugs that uses Mario as a logo smoking weed and the store is even called Mario Where can I notify Nintendo about this?
This is their logo: https://dutchsmartshops.com/uploads/73/72/c30087c59a40f237ad8facb17b4f639a-1920x1080.jpeg

Commercialized fan art, AI infringements, anything overlapping their current hardware/software business.. Nintendo watching with Reaper Eyes..

"fans can still make stuff just dont share it online" do people not realize how ridiculous that statement is? like have you ever spent any time in any community? should all gaming creators/streamers just stop? what

@alexw at that point it goes beyond fanart, doujin or parody...
at the same time, best not be an unpaid corporate lap dog

Nintendo being horrifying overreaching corporate vampires and people for some reason defending it, what else is new.

Protect Nintendo from people profiting wrongly from your IPs, sure.

However don’t crack down on fans honouring your IPs and adding value to the community.

It’s as simple as that.

I don't see any value whatsoever in derivative fan art. Why don't these creators try to make something of their own, instead of riding coattails? That may sound harsh, but we live in an age of disinformation. What can happen, in the extreme case, is that people start mistaking a fan creation for the official thing. So, yeah, I can understand their protectiveness.

@Qwiff Well said.

@Rooty @Qwiff Nonsense. Absolute bloody nonsense . internet culture already makes it clear you should look for the official art of you see fan art to verify the original tone. This is not like believing in fake news that can ruin your life.

And on top of that, they are fan artists They are drawing these characters because they've been charmed by the main art, drawing certain scenarios that the fanbase loved, ect. Hell, when the Blue Archive Anime aired it's 11th episode, you could tell the fanbase loved the gag where the main character licked a certain other character's feet from the avalanche of fanart alone, if not adding to the gag. It's a loose form of feedback, where a picture is worth 1000 words. A franchise like that lives and dies off of said engagement.

And that's also ignoring that Japanese pop culture is built on the basis of doujin fan culture. Imagine, beginning to understand the fundamentals of the manga industry, improving your artstyle and story telling skills using a series you're a fan of to make unofficial content for fellow fans and then going on to change the entirety of japanese pop culture when you decide to go original, barrowing the elements you loved the most and get picked up by a publisher, all snuffed out because some old farts only see fan works as leeches rather than healthy extensions of the industry in order to appease investors.... We would have never gotten the now classics we did...

Welp, I'll take the vagueness of their statement as fanart that portrays the characters in a non-brand friendly way as being a no-go as well. Nintendo doesn't like any form of creative expression from their fans.

@JohnnyMind Not familiar with Undertale, but motivated creators will find their way regardless. Yes, modding can be an on-ramp to game dev.

Question for all those "Nintendo has every right to protect their IP" commenters: protect from what exactly? Can you name one instance where a company in allowing somebody's fan art / game to exist resulted in them losing the rights to the intellectual property, or in noticeable financial losses? Just one single instance will do.

@mlj11 A few years ago, there was a 2D Metroid Prime fan game. That got taken down for, in retrospect, good reason, as Metroid Dread was still in development. That fan game actually looked quite good, IIRC, so a casual observer could have easily confused the two.

@Qwiff One is 2d and makes a gag in its name about how it's unofficial. The other is 3D, running on actual Nintendo hardware and makes it quite clear this is a professional production of an otherwise forgotten game. There is absolutely no way anybody is that stupid unless you absolutely don't know anything about video games. And I mean anything. But Metroid is a very gamer centric series.

Also, this doesn't answer the question. He was asking about who lost the rights of the IP over fan content.

@Samalik Apparently, my comment touched a nerve.

Fact is: no-one is asking for fan creations. Some IPs engage more with their fanbase than others, while, for Nintendo, it's purely business. They don't need fan creations, because their games do fine all on their own.

Aside from that, I don't think Nintendo minds a teenager practicing their art skills and posting their works on social media, but that's not what this article is about.

I dunno for sure how I stand on this issue, but I agree that Nintendo has a right to guard their IPs and fan art can either scare away from or drum up interest in a product. I can see it being used to the advantage of Nintendo and the disadvantage and if they think the cons outweigh the pros, well then that’s the best decision

It's funny to watch people argue over this as it's entirely dependant on who it is; in this case it's Nintendo.

Change Nintendo to a small indie studio trying to launch an IP and someone else starts using it. In this case most everyone would be on the side of the small Indie trying to keep and protect their IP. But because it's Nintendo, its wrong.

@mlj11 Protect goes beyond financial and property loss. If Nintendo allows the sweet and innocent, they also have to allow the degrading, violent, horrific and pornographic, because a precedent was set in allowing others and precedent is everything. They're not going to govern each piece, they're going to blanket cover themselves and their IP against all of it. They don't want their characters portrayed in any way except how they want.

@Cotillion Nintendo is beyond the point of the "sweet and humble indie studio trying their best". They're pop culture at this point. And yet, they show a history of trying to control how people can engage with their pop culture when it's normally the other way around.

If nintendo wants to protect their products they sell then by all means. Bootleg companies deserve their place. But the same can't be said about passion projects and parody. Not even a sane indie studio who gained some popularity would do that...

Also that protection doesn't really do much. people still know who Mickey Mouse is suppose to be. That doesn't mean the fanworks out there that do said parody (such as south park) is suddenly going to change how people know the character is. Disney's crappy attitude can since they own the mouse and use him as their face does but that's on them.

@Qwiff "Aside from that, I don't think Nintendo minds a teenager practicing their art skills and posting their works on social media, but that's not what this article is about."
"I don't see any value whatsoever in derivative fan art.Why don't these creators try to make something of their own, instead of riding coattails? "

These attitudes clearly do not align with each other.

Besides that it doesn't matter if you're a teen or adult. Practice is practice. Self expression is still that even when shared. The article clearly does imply such a thing of overstepping the ethical point copyright protections. And Nintendo's history isn't doing any favors here.

You might wanna argue "they don't need it", but Nintendo has already worked with such artists on games like Xenoblade to make their multiple non-MC Blade characters, and I still would not have found older franchises if it wasn't for the doujinshi scene putting their one-shot fan manga up for sale at dual annual comiket. So yes, their creatives do benefit from it, but their lawyers don't care and abuse said laws that the otaku sphere already knows better to not use unless in genuinely extreme cases such as politics.

"Nobody is asking for them" is not a valid reason to step all over them, especially when you consider that the person asking for such art to exist is the artist themselves first and the people who enjoy the unique work from the artist. That's where fan commissions come in. Because people do want art of their favorite character by their favorite artists.

If you actually would have kept up with the art field, something vital for any game in general, you would have known. Of course I feel strongly about it. Because I want to make art like that myself while I get my original ideas sorted out behind the scenes, while getting my artstyle polished up for said project when I'm not doing that.

I mean I can draw Mario as cute Chibi six pack Boxer and post to Deviantart as fan art.
And I still draw him very appropriate to watch even with shirtless six pack Boxer outfits.

@Samalik I know you're arguing against what I said, but actually just make the point. Just because they're not a small Indie means they should be giving up their rights to protect their IP as they see fit?
How exactly do they govern this? For every innocent fan art or game of Peach, there's likely 10x more of her in porno situations. They can't allow one and not the other, by your argument. People want fan art of their favourite characters...that extends well into the realm of sex & violence. Good luck taking that down when you have a precedent of allowing your characters to be used in any number of other ways.
People always assume its just about others making money off the IP, when there's other factors . Nintendo doesn't want Mario gun toting or in games of Mortal Kombat levels of violence or the roster of Smash Bros suddenly in an orgy arena instead of fighting. It's all about the precedent.

Edit - to be clear, I am not even on the Nintendo side of this, exactly. I play fan games, use fan art, play a lot of modded Nintendo games and whatnot. Hell, the best version of Zelda II is a fan mod. But, I can just see why Nintendo does the things it does and frankly, its ridiculous anyone thinks Nintendo should just allow people to do whatever they want with their IP.

They'll never find them all

Some of you in this comment section...

Lets start with addressing the nonsense. So many of you keep a refrain of "Fan stuff can still be a thing, just don't share it or profit on it"...

A couple of questions:

• Do you seriously believe every one of the fan games/project shut down by Nintendo over the years were all making any kind of profit?
• How else do you expect these fans to have others recognize their chops if they don't share what they've made?

Cause about the first one: how many of the fan games/projects that have been shut down by Nintendo over the years actually had any kind of revenue stream attached to it: I can count the number I've heard of like that on one hand, and I have been hearing about shutdowns via this website and others for years now.

Most of them have been entirely non-profit. Without even an intent to profit in any material sense.

As for the second: have any of you tried making a project similar to a fan game where you had 0 intention of sharing it with any one whatsoever? Because I seriously doubt you had none if you did. Projects like that are meant to be shared.

And then I want to address the whole "Why don't people just make their own original stuff in the first place?" bit, like Qwiff has.

Let me ask you a very simple question: If any of you doodled as a kid, and you were exposed to Nintendo's IPs, were you drawing your own completely original characters all the time, or were you doodling stuff from your favorite Nintendo IPs?

Cause that's certainly what I was doing. I drew my own original stuff too, sure, but a lot of my art over the years has been derivative of stuff I already love and have a big passion for.

And trying to come up with your own original stuff from scratch, not be cliche about it, etc. is a lot harder than you think.

Trying to make original stuff is like trying to make a collage using stuff you have laying around the house. You literally cannot avoid, in some form, using something made by someone else 90% of the time because, chances are, someone already has done it or has something similar.

That doesn't make it not worth it to do, but that means making something original takes a lot of time and care to do, something a small/solo indie dev may not want to take the time to do, because they want to focus on improving their skills making a game/fan project to begin with using whatever engine they're focusing on.

Trying to make something completely originally while trying to juggle learning how to work a game engine or do programming can be really overwhelming.

That's the reason you see a lot of devs that explicitly riff the gameplay styles and systems of stuff that already exists: it's simply easier to take something that already exists and try to make your own spin on it, no matter how derivative it turns out. That's especially so with stuff that explicitly uses existing IP.

As an artist myself, I know this is true. I've tried making my own concepts before. My own original stories and characters. Even have attempted game dev before.

Complete originality is entirely overrated. It's like the concept of perfection: so many try to aim for it, but more often than not, it's better for your sanity to aim lower and allow yourself to draw from stuff you like.

@Cotillion It's long term business sense. If you take away that freelance freedom of expression, you're silencing future creators who may want to work with you in the future to make a very faithful entry, potentially better than what came before. Doesn't matter if it's Nintendo or an indie studio, because it's the same principle. Nintendo tries marketing their generic picks to families, but it's the teens and passionate adults who keep them in the gaming conversation, especially creatives on places like youtube.

They still own the IP regardless. and they still have more marketing power to keep Mario's intended image set in stone. They're going to keep making their money regardless. So attacking creators for making things in their own space of the internet is usually going a step too far.

Kids are gonna grow up and mix their favorite things together to make colorful creations. Does that mean they should be silenced? No. Let the creativity flow organically. I don't care about porno situations. Like usual, that comes from a place of love too. Dare I say, that's also part of a passionate growing kid's/teen's experience. And I do speak from said experience before drifting away from it because they art didn't look good with age but I digress. That doesn't mean I don't know what Mario, Zelda, ect, is suppose to be. And hell, that's what makes Shotgun Mario 64 so hilarious. The precedent is already there by default.

So no. I don't see it. I'd rather Nintendo create doujin guidelines like what most respected Japanese/korean entertainment companies do when they recognize good faith and make things more clear cut on dos and don'ts. Because right now, everyone who likes making anything Nintendo related is running around like headless chickens....

Companies have to defend their IP almost to a ridiculous nature because if they set any precedent of allowing inappropriate use, it makes every case they bring after that harder to defend. This is why you see them bring C&Ds against items you probably wouldn't expect.

@Samalik Sorry, but you're taking my words out of context and reading way too much into it. Again, it looks like I'm touching a nerve here, because my few lines of comments trigger a wall of text in your response. That's not a good basis for a reasonable conversation. Have a good day.

You should be able to produce work based on properties but not profit off of it/sell it and it should be made abundantly clear that it’s unauthorized and unofficial. You also shouldn’t be able to distribute them through channels where they could be mistaken for official projects- app stores, console storefronts etc. Own websites or sites that clearly facilitate fan projects should be the only places you can find such games.

I don’t understand where the issue lies in that. I completely understand going after people trying to sell things but fan games distributed for free etc…can’t get my head around it. SEGA embraces it as far as I’m aware and it does them no harm. I think largely the distinction between what is official and what isn’t is clear and if you’re going out of your way to find fan games then you likely buy the official stuff anyway. Same goes for fan art, remixes etc.

Plus fan games can be good for fostering new developers as they get their names out there with projects that otherwise maybe wouldn’t become popular without being tied to an existing IP, for example the AM2R dev being hired by the Ori devs after he released his remake. I’m failing to see the downsides as long as the work is original (save for the inspiration/use of characters), not for profit and clearly communicated that it’s not endorsed by the license holders in any form.

@Cotillion

Thanks for your reply. You said, "If Nintendo allows the sweet and innocent, they also have to allow the degrading, violent, horrific and pornographic, because a precedent was set in allowing others and precedent is everything."

That is quite the claim. I don't understand this particular idea of precedent you're talking about, do you mind sharing where you got the concept from? Exactly who made and/or enforces the rule that allowing one piece of fan art obliges you to allow every other piece?

In any case, my question was about a company losing its earnings or IP because it didn't take down fan art. Do you have any specific examples of this happening?

@larryisaman On the topic of how Nintendo handles it compared to Sega, I would recommend the yt channel Moon Channel. He has great videos discussing how oth companies handle IP protection and why they do.

It's so amusing because honestly, Nintendo doesn't have any worthwhile IP to steal. Bland boring characters from 30 years ago. They haven't even made a new IP character that stands out in....I don't know, have they ever since the original NES? I don't think so. (no, color swapping Princess isn't some amazing IP innovation, it's lazy and uninspired).

@babyThorman if that's how you think, why are you even a Nintendo fan? Go back to your far more boring COD and GOW characters, dude.

I personally don't care for fan projects at all, but I'm not against ROM hacks continuing to be a thing.

@batmanbud2 Some of the fan games are better than the actual ones.

@batmanbud2 When someone has to preface their post with the word "honestly," you can be pretty sure that everything they say will be anything but honest.

@Bigmanfan I’ll give him a look- thank you!

@PipeGuy64Bit More specifically inappropriate fan-art.

Shoot the inappropriate fan-art ALL DOWN bwhahahahahahaahah
pew pew

It's times like this that make people like me glad that SEGA is more fan-friendly than Nintendo, due to the fact that they're just third-party publishers now. But sometimes, I wish they'd be a tinier bit restrictives with what fans post, these days. Ohhh, I hate that hedgehog, but at least the Sonic fandom is locked in a civil war that would result in the successful elimination of both sides.

@YoshiAngemon To be fair, Nintendo is also fan-friendly. They just have to follow the rules of Japanese copyright & the ESA, even if it may end up polarizing fans.

I support Nintendo 100% on this. It's their intellectual property and they can manage it in any way they want. If something doesn't fall under fair use laws, they can take it down.

You can always create your own IP, there's no reason to use Nintendo characters. Obviously then your project would have to live on its own merits, and not get free clout for using Mario and Link.

@babyThorman "They haven't even made a new IP character that stands out in....I don't know, have they ever since the original NES?"

They made Splatoon just nine years ago on the Wii U. I'd say that series stands out quite a lot.

There are some ROM hacks of Nintendo games I've played out there that I've really enjoyed, like:

• Newer Super Mario Bros. Wii / DS
• Super Mario 64: Star Road
• Zelda: The Missing Link
• Paper Mario TTYD 64

These hacks haven't made me think less of Nintendo's official games. In fact, they've made me appreciate them even more. Hacks just help give a new, fresh look on games I love.

A lot of fear mongering going on.

Regardless of where you stand, wither you believe Nintendo has the right to protect their IP by any legal means or if you feel that you are entitled to use the work of others without restriction ... IP law only goes so far.

The question this comment is an answer to is this

"I understand that Nintendo sees itself as a company that aims to "put smiles on the faces of everyone it touches.
Unfortunately, I sometimes come across cases on social media where Nintendo IP and games are used inappropriately. I feel that this kind of behavior poses the risk of damaging the value of Nintendo IP, so I'd like to know how you handle such cases."

First, let's address "feel uncomfortable". The Japanize phrase used here could also be translated as "be offended" ... so let's just get that out of the way. Yeah, this comment is about porn.

What dose IP law allow a IP holder to do about pornographic depictions of your IP? Depending on where you live, it varies from virtually nothing to literally nothing. In Japan, they can't stop people from producing and publishing parody manga, and in the US, they can't stop people from producing cos-play movies or photo sets, even though both are clearly for commercial use and happen out in the open. If your country has free speech laws, it's almost a given that parody and pornography are the two of the MOST protected classes, given they are the most challenged.

So what gives? I think the two important points here is that

1) This is a shareholder meeting.
2) The question specifically speaks to social media.

For anyone who isn't familiar with how share holder meetings and earning reports work, they generally include question from "Joe Shareholder". Anyone can write it, and questions are selected for answer sometimes at random ... but the answer is always the same. "We understand and agree with your feedback and will fix it. Don't sell our shares". It doesn't mean anything. It's not a commitment. It's not a declaration. Think of it more like Taylor Swift answering a random fans comment on the direction her music should go with "Oh yeah, I totally agree, you should buy my next album because I'm totally going to do that."

Second, most social media doesn't let people share porn, specifically because it might show up in the feeds of minors and people who are offended by porn.

So, removing the corpo. speak and fearmongering this question and answer is.

Q - My son searched "Princess Peach" on Facebook and found a group that makes porn images. Are you going to do anything about that?

A - I mean, not really, We'll tell Facebook, given that violates the Facebook TOS. Beyond that, nothing we can really do. Plus this is Japan, dude. Hello Kitty sells a vibrator. Get over it.

So on a "should I care" scare of 1 to 10, this get a "Meh".

@HeadPirate
Well put, this isn't really an issue. Even if they tried there's no way Nintendo would be able to police every single piece of smut featuring their characters (nor do I think they should), they couldn't even manage that on their own social media platform with Miiverse.
This was an answer for the shareholders and the shareholders only.

@mlj11 Lets say Nintendo allowed people to use Mario and Peach in a fan made game that introduced different mechanics. Nothing bad, but lets say in the style of a Metroidvania, but same light, cartoony fun we expect from Mario. No one is making money off it, its not being used to advertise anything else, it's just there for people to play. All is good.
Now, lets have someone else follow that up and make a full-on porn game with Mario and Peach. Or one where Mario goes full Mortal Kombat or Doom-like violence. Non profit, no advertising, exact same as the aforementioned one. How does Nintendo shut down the porn or violent games while letting the Metroidvania one exist? They can't, or at least have a much harder time because they have allowed it before. The precedent was set that they allow their IP to be used unlicensed, so it's a much harder fight should the ones using it fight back.
They could try and govern it on a per-use basis, but now we're talking more costs than what they are doing currently.
So instead, they have set the precedent that they do not allow usage. At all. Its far easier for them to do it this way. They'll never stop it, they'll never catch it all, but they are protecting themselves and their IP by maintaining the precedent that they do not allow their IP to be used unlicensed.

Regardless, this isn't even a debate. Nintendo owns their IP and will do what they want with them.

Honestly they should make Bowsette an official standalone character separated from bowser give peach her own nemesis like wen bower goes and kidnaps her now the opposite bowsette chases after mario.

NEWS: People were making d*** Mario hacks for like 20 years or longer before Nintendo decided they needed to "take actions to protect their IP" or whatever (close to a decade now of this consumer-hostile action) and they're still in business just fine.
Like, since Nesticle was the popular NES emulator and made it super-easy for any immature person to open it up and edit the graphics without much skill at all.

@babyThorman "They haven't even made a new IP character that stands out in....I don't know, have they ever since the original NES?" This is straight up trolling

This response is more than likely in response to someone cosplaying as Nintendo characters and sending Nudes to minors. There is a reason why Nintendo has been reluctant to do official Smash tournaments as there have been serious allegations against some of the top players.

https://x.com/OatmealDome/status/1806236811204636757
https://x.com/OatmealDome/status/1806236812639142193

@Cotillion Nintendo has to claim just how the IP violation damages them. A porn is an easier open-and-shut case for them.

@alexw

(suggestion #1: "Nintendo of Europe AG Attn.: Legal Department, Goldsteinstrasse 235, 60528 Frankfurt am Main, Germany or via email: dataprotectionofficer@nintendo.de")

(suggestion #2: To report illegal use of Nintendo trademarks, or for any other legal inquiry or concern, please email us at noalegal@noa.nintendo.com" (Nintendo of America))

(suggestion #3: Nintendo of America Inc. c/o Legal Department, Intellectual Property Policy, 4600 150th Ave NE Redmond, WA 98052 ("dmca[@]noa.nintendo.com"))

(suggestion #4: "Nintendo Co., Ltd., 11-1, Attn.: Data Protection Officer, Hokotate-cho, Kamitoba, Minami-ku, Kyoto, 601-8501, Japan, dataprotectionofficer@nintendo.co.jp")

Inappropriate or not people that have never played a nintendo game could potentially give one a try seeing these things so nintendo is kinda losing some potential profits.

I agree with IP owners protecting their IP, but bullying tactics and being overly litigious really doesn't help their image.

nintendo is going to learn what the streisand effect is in the weirdest way possible with this...

It is well past time to have a serious conversation about the length of copyright. It was intended to give incentive for creators to share their work, and promote art and culture (at least in the US). It has been perverted into a de facto high jacking of the public domain and locking everything corporations can get their grubby hands-on behind paywalls. It is strangling the ability of our culture to grow outside of the media strongholds we now have.

Under the current insanity, Andy Warhol would have been sued by Cambell's for using their soup can in his art project.

They have every right to protect it I won’t disagree with that, but I still feel like it’s just a bit much I mean I understand patrons and stuff that gets money I think that’s entirely fair, but I can’t agree and think it’s unfair just to ask people to stop posting things like fanart and other works on the internet, it usually to show appreciation for things they love especially fan art.

This is exactly the reason why I've said for years that Nintendo doesn't want their games on PC. Once that happens you open up the door to tons of different mods and instead of a few people doing now everyone has access to it and then you can't do anything about it.

@Cotillion "How does Nintendo shut down the porn or violent games while letting the Metroidvania one exist? They can't, or at least have a much harder time because they have allowed it before. The precedent was set that they allow their IP to be used unlicensed, so it's a much harder fight should the ones using it fight back."

I work in a legal field and am unaware of such a doctrine, nor have I ever heard of what you described happening in any actual cases. Of course my knowledge is non-exhaustive, but just a quick google search on "intellectual property infringement defences" will return plenty of results such as fair use, but I don't see a single source saying that a IP holder failing to dispute another (prior) instance of infringement therefore denies the holder the right to bring a claim against a separate infringement.

Yet you appear very confident about what you're saying - do you perhaps know of some case law where a defendant successfully used such a defence against a copyright infringement claim? If so do you mind sharing that case here?

Otherwise... are you just making things up? Your usage of term 'precedent' is extremely peculiar and raises my suspicions - I've certainly never seen the concept applied legally in the manner which you've described.

@Kingy

Thank you for the shout out. I really appreciate it.

@nocdaes
Well said!

Ok but can you really say r-34 fanarts are NOT "bringing smiles through entertainment?" I don't know that I can.

@mlj11

I generally like to assume that people are not simply lying for the fun of it, so I think their are two very real legal principals the OP could be referring to, simply with an incomplete understanding of the details.

The first is copyright / trademark abandonment. This is an affirmative defense where the defendant argues that the plaintiff has taken some public action that has indicated they are no longer interesting in protecting the work. It's not an uncommon defense in general, and the specific defense of abandonment by non-enforcement pops up all over the place (Peter Pan Fabrics, Inc. v. Martin Weiner Corp. (1960), Baraban v. Time Warner, Inc. (2000), Hadady Corp. v. Dean Witter Reynolds, Inc. (1992), Filmvideo Releasing Corp. v. Hastings (1982), Gracen v. Bradford Exchange (1983), as a few high profile examples).

So points for it being a real defense. But they quickly lose that point because ... it literally never works. Micro Star v. Formgen, Inc., 154 F.3d 1107, 1114 (9th Cir. 1998), as well as several other cases, established that it requires an overt act on the side of the rights holder to meet the burden of proof. It's difficult to argue that non-enforcement is "overt". All the cases I listed sided with the plaintiff. I'm only aware of one case where it was successful, where the rights holder for a play let community theater and schools knowingly use it freely for like 10 years then sued someone who did a production that highlighted themes the rights holder didn't agree with.

The second would be selective enforcement. If Nintendo didn't enforce their IP rights 99 times out of 100, that 100th person can argue that the choice to enforce in their case was because they are [race][gender][religion][nationality][sexual orientation] and Nintendo are using the law to discriminate. That's totally a real thing, at least in the US ... and it also never works! Much for the same reason ... as an affirmative defense the burden of proof lies with the defendant, who has to prove intent.

But bottom line, from a corporates standpoint, you do generally want to show universal enforcement. The important part isn't that you are going to win a case citing abonnement by non-enforcement EVENTUALLY, the important part is that if you can't get it dismissed with your preliminary motion you're already out millions of dollars.

Nintendo: "Our property, our right to protect."

People who presumably also own property they wouldn't want appropriated by others: "No."

Smg4 from YouTube springs to mind in this case

If someone can provide the tweet then reply but in reality this is much closer to Nintendo protecting their IP from pdf files. The many case their comments relate to someone trying to talk to a minor as a Nintendo character

People would still enjoy their games even if idiotic copyright laws didn't exist. The whole "buh buh we need to protect our IP or it'll die" argument has always been bunk.

Inappropriate content should be nuked from orbit. But wholesome fan made mods and ability to emulate old stuff and the like is actually keeping the Nintendo fanboyism alive these day, to a great extent. There is so much cool stuff.
Of course when it starts impinging on sales of newer stuff it needs to go.
And in the end only Nintendo can make that evaluation, and has that right. But if they overdo it, it will mean suicide I'm afraid.

Maybe Nintendo are referring to such products from china, without their licensing

https://i.postimg.cc/fyBnSRPj/ji2pqrhdqz9d1.jpg

Get your fake Sh** off the internet (nintendo - NOW!!).