Nintendo spends a lot of money creating that content and we like that. That’s why we have created a framework that allows them to make money out of that investment. We limit your right to do whatever you want so they can make money.
No I was talking first about the rights to emulation, romhacks and mods.
Those are perfectly legal right now, there's no ambiguity, whatever Nintendo thinks on this subject doesn't matter and their opinion doesn't have any value.
> Nintendo spends a lot of money creating that content and we like that. That’s why we have created a framework that allows them to make money out of that investment. We limit your right to do whatever you want so they can make money.
I'm sure Nintendo is doing fine financially selling those games, you don't need to worry about that.
Is making a video about sneakers "use of Nike's IP"?
What if they've been dyed to be the same color as a much more expensive limited edition?
Is making a video about driving a Corvette through some picturesque mountain roads "use of Chevy's IP"?
What if that Corvette has a custom supercharger kit, installed at a fraction of the cost of a factory-supercharged Corvette?
Example: a 30-second sample of footage from a movie is Fair Use in an educational or journalistic context; while a five-minute long sample is not, no matter the context. (Have you ever thought about why TV shows about movies only use tiny clips of the movie, even if the point would be much better made showing the full scene? It’s because they have no valid Fair Use defence to using clips that long, and so would have to pay for the rights — which they don’t want to do.)
Obviously, a YouTube upload of a movie substitutes for buying that movie.
Less obviously, but still overwhelmingly proven, a YouTube upload of “the Phantom Cut” substitutes for purchasing The Phantom Menace.
And here’s a specific precedent you can look up: RiffTrax were never legally allowed to distribute the (copyrighted) movies they dubbed over with comedic commentary, just because their derivative work was transformative. A work thus combined would still substitute for the original movie. When they did MST3K, that was all public-domain movies; and when they did RiffTrax records, those were like ROM IPS patches, not containing the original IP but instead intended to be combined with it by the end-user (“simultaneous play”.)
A LongPlay of a JRPG likely provides all the “game” that many people want when they buy a JRPG. As this is done using the copyrighted assets of the game (dialogue, etc), a LongPlay is legally a substitute for the game.
To be clear, that’s not the point here, as sampling is an easier-to-satisfy criterion than direct substitutability is. But substitutability is a useful model for understanding sampling.
If a remix or radio edit is a substitute for the original song, then a song that uses 30% of another song as samples, could be said to be 30% a substitute. (This isn’t actually why, but this is a useful intuition that allows you to predict the law.) So you still owe royalties.
Now: how is a video of a speed run, or a commentated Let’s Play of a game, different from one song sampling another song, in a way that is in itself different from the way that a LongPlay is a substitutable good for a game, taken through the lens of sampling one work to create a derivative work?
(Keep in mind that by a strict interpretation of IP law, everyone making gameplay videos of Nintendo’s games owes Nintendo royalties on revenue from those videos, just as much as musicians that sample other artists’ music owe those musicians royalties on revenue from that music.)