Good vibes abound right now for Nintendo. The Super Mario Bros film adaptation is the biggest hit of the year so far, raking in over $1 billion at the global box office. Fans are flocking to the newly-opened Super Nintendo World at Universal Studios Hollywood for its first summer season in operation. The latest Legend of Zelda adaptation, Tears of the Kingdom, lands on May 12, and early leaks and sneak previews have ratched up anticipation to a fevered pitch.
But behind the scenes, some of the company’s less high-profile moves have led to some concerns among creators, particularly those who stream themselves playing and enjoying Nintendo’s hottest consoles and games.
Aggressive moves from the House of Mario
Popular streamer Eric “PointCrow” Morino, who has around 1.67 million subscribers to his YouTube channel, was hit with a string of copyright claims by Nintendo. In all, Morino said in a video that he received 28 flags against his channel from the game maker and publisher, pulling monetization from a vast cross-section of his content. As of now, he said he is just one YouTube-issued copyright strike away from being entirely de-platformed.
Morino sometimes features modified versions of Nintendo games that tweak the difficulty or format of games—for example, turning single-player games into multi-player experiences, or collecting a large number of enemies in a small area to present a particularly intense challenge. There’s really no limit on what these kinds of hacker-created mods can do, as demonstrated by a recently viral example that replaced Resident Evil characters with Mario and Luigi.
Though popular among players, fan-created mods have become a particular sore spot for Nintendo, which carefully guards its familiar branded characters and intellectual property. The company aggressively goes after so-called “modders” who hack consoles for personal profit—as in the case of the aptly-named Gary Bowser, a former member of hacking group Team Xecuter who was indicted in 2020 for selling chips that allowed users to play pirated games. He’ll likely spend the rest of his life paying back millions of dollars in fines to the company.
On the other hand, Morino was not selling hacked games, but simply featuring footage from modded versions of Nintendo games on his channel. This was apparently enough for Nintendo to issue the takedown notices, with Morino providing screenshots of the notices in a video that received over 1.8 million views (and is now unlisted). He also indicated that several of his videos featuring no modding of any kind were taken down at the same time.
Due to the way the strikes were reported and bundled by Nintendo, this resulted in YouTube issuing Morino’s channel two strikes. This leaves him with one strike left—if you get three strikes on YouTube, your account may be deleted, all your videos may be removed, and you may be restricted from creating new channels in the future. Nintendo bundling the videos in this way may have been a a purposeful attempt to push the creator close to a ban, but with slight wiggle room to keep posting and avoid future infractions.
But what might those infractions specifically entail? Beyond just taking a considerable hit on income, the incident has proved confusing for the creator, in terms of his overall content strategy. Though Nintendo filed strikes against a number of videos featuring mods, they also flagged some videos that don’t include any modded content. That kind of content is the bread-and-butter daily staple of “Let’s Play” video creators across the web, and it drives millions of daily views on platforms like YouTube and Twitch.
How fair use works on YouTube
Traditionally, gameplay videos featuring reactions and commentary from players likely fall under the legal definition of “fair use” and align with Nintendo’s own published terms and services for the use of their content. Though they include copyrighted material, these videos alter the game footage significantly enough—usually by adding personal insight and analysis—to transform the work, turning it into a new piece of content that’s legal to post.
YouTube’s system—in which the process of claims, counter-claims, and other copyright disputes are mediated by the platform itself—offers more freedom and opportunity for creators to respond and get involved in the system than most other platforms. Traditionally, if a platform receives a claim from a copyright holder, the offending content is simply removed, and a creator would have to reach out to the third party themselves to potentially resolve the dispute.
Nonetheless, though copyright holders are supposed to consider fair use before filming claims against potential violators, in a practical sense, the “burden of proof” remains on the creator themselves, to establish why they feel they have a right to the copyrighted material. It remains relatively simple for large companies to issue a wave of claims against multiple channels, while the task of establishing the actual nature of the content rests entirely with the creators.
Long-time YouTube film and gaming commentator Jonathan Paula (aka Jogwheel) estimates that he’s personally been hit with 2,500 copyright claims throughout his 17-year career. He told Passionfruit that dealing with strikes and take-down notices are a core part of the job of any online content creator.
“These are not new issues … And thankfully, the tools and educational resources surrounding copyrighted material has become so much stronger and creator-friendly,” Paula noted, reflecting on how things have changed since he first started streaming.
Any significant change in how “fair use” laws are interpreted or enforced could have widespread and immediate ripple effects for all creators, potentially even beyond the world of video games.
Creators on legally shaky ground
By laying out a system allowing platforms to host user-generated content without making themselves liable for legal violations, rules enumerated in the Digital Millennium Copyright Act and Section 230 of the Communications Decency Act serve as the legal foundation for the entire internet. If a rights holder like Nintendo could directly sue a platform like YouTube or Twitch for violations, there would be no consistent legal way to host any kind of public content at all, without the platforms accepting a massive amount of legal and financial liability.
When the way these rules are enforced shifts, even in relatively subtle ways, that can have a significant impact on the kinds of content platforms are willing or able to host. (Imagine YouTube not wanting to host criticism of a popular product or public figure, for fear of a potential lawsuit.)
This isn’t purely theoretical, either. The Supreme Court is planning to reconsider Section 230 this year, in cases that relate to platforms hosting content posted by terrorist organizations. But the implications could reach much further than that, limiting the kinds of content platforms would be willing to accept from users, even if it otherwise meets traditional legal standards like “fair use.”
As PointCrow says in his video, he finds Nintendo and YouTube’s moves “a little scary,” particularly just ahead of the release of Tears of the Kingdom and what’s sure to be a flood of new fans posting videos of themselves enjoying the game.
“It will be difficult for any content creator to post creative concepts,” he argues, “without having the fear of Nintendo exercising their copyright over their video,” even if it roughly aligns with their pre-existing policies. A recent piece from Wired reporter Will Bedingfield reached a similar conclusion, noting that “fair use” laws can be unpredictable in enforcement, putting creators on permanently shaky ground.
Modding adds more shading to an already-complex system
Still, Morino’s use of explicitly banned modding technology on his channel adds some nuance to the situation. In an article about modding and its legal status, international corporate and tax lawyer Alex Leturgez-Coïaniz notes that modding, by adapting a previously copyrighted work without permission, is inherently an act of infringement.
“Fair Use is used to argue that certain infringement is OK because it is, say, educational, satirical, or non-commercial,” Leturgez-Coïaniz explains. “A mod, free or not, would still involve a modder’s use of copyrighted material to create a derivative work, and would most likely be outside of Fair Use’s scope.”
Despite PointCrow’s existential concerns about the state of gameplay videos, many creators in the YouTube gaming space seem largely unbothered or surprised by the moves.
Twitch and YouTube streamer Chris Adams told Passionfruit, in his experience, “most people streaming Nintendo games [are] typically left alone now.” He suspects that Morino ran into trouble specifically because he features mods, even if the strikes went beyond just those specific videos, and that these were the videos that brought the PointCrow channel under greater scrutiny by the publisher.
It’s worth noting that Adams has not yet attempted to stream new Zelda content. As a Let’s Play streamer who purposefully avoids posting mods, Adams says he’d “absolutely have some concerns” if hit with any claims by Nintendo on his channel.
Case-by-case decisions about which videos get to remain on platforms like Twitch and YouTube, and which videos can be monetized, typically won’t be decided in a court of law. More often than not, these decisions come down to set precedents and subjective calls by the platform or the content owners.
Paula suggests content creators push back against copyright claims, even on videos of semi-dubious legality, including mods. “The only thing I consider when making new videos,” he said, “is whether all the content is something I have a legal right or fair use to include. If the answer is yes, I’ll fight like Hell to keep it. If not, I won’t make that video.”
We contacted Nintendo and YouTube for clarification about the takedown of Morino’s videos but did not receive a response. Morino also did not respond to our request for comment via email and direct messages.
