Nintendo and the art of the popularity contest

 What do you mean 'people don't like morally reprehensible conduct'?

Yes, I know that I've been harsh on these fellows in the past but make no mistake, dear reader, they deserve it, and it comes from a place of love. I respect Nintendo, I truly do; the legacy that they're strived for and built over a manner of decades has very much facilitated the gaming world around them, and they've remained a constant in most every gamers heart because of that pre-eminence. That being said, such makes us hold them to a higher standard, because if we can't expect greatness out of our rolemodels than who can we believe in? But in doing so we open ourselves up to disappointment because it seems the further we move into a new age of gaming entering the mainstream and rewriting what it means to be part of an entertainment-based community, Nintendo have been digging in their feet and stubbornly refusing to meet with the time. Over the years this has started to build to the sort of friction that's becoming a serious problem, and sooner or later something is going to give; the only question is whether or not that'll be the backs of the old guard or the general public respect for this once-cherished industry pillar.

Recently I covered an issue regarding Nintendo and the way that they've chose to enforce their brand on the general community, which may be well within their legal right, but that doesn't always make for the best of decisions. Now to be clear; legally the defence of one's own brand is their responsibility and should they fail to do the consequences could be disastrous. Never would I, or anyone of sound mind, expect a studio like Nintendo, or indeed anyone who wants to be taken seriously in this world, to allow their brand to be taken away from them. So yes, this means putting their foot down whenever they see someone looking to profit from their copyright, even in situations where no malicious intent was implied. But is there some sort of balance to strike there? A situation where the other cheek can be turned in situations or contexts of extenuating circumstances? Nintendo, as a whole, seems to have leaned towards the blunt-most answer, but this year alone I'm not sure that the general public has agreed.

That being said, I don't think that any and all corporate action against infringement is bad, no at all. Take the Streamer who was apparently sued by Nintendo this year for trying to sell merch with her official brand labelled to it. Given her name (Which riffed on 'Pokemon') and the design itself, (Which were two shirts, one with a Pokeball on it and the other featuring Mew) this seems like a pretty straight-forward situation of infringement that Nintendo were fair enough to step in on. The Streamer in question seemed to understand that she was in the wrong and changed her brand to step away from the Pokemon name, and Nintendo acted fairly with their cease and desist. Again, this a baseline for what I would call an acceptable application of Nintendo's legal powers. They didn't cause too much of a splash, acted in a manner that was in complete defence of their brand, and didn't fail to account for extenuating circumstances that really should be considered before action is even approached.

And then there's the issue with Smash Bros. Now I know I've gone over this recently but allow me to quickly summarise. The recent Pandemic which has shut down travel both internationally and locally to most places across the world, seriously took a toll on organised events and caused a great many to be shut down pre-emptively for everyone's safety. But there are still those who actively looked for a way around such restrictions because their passion for sharing what they loved outweighed the complications they had to abide by. In such a vein, one old-school Smash competition decided to move to an emulation software to run their game and keep their tournament alive online, seeing as how official Nintendo severs have long since closed and this would be the only feasible way to hold a not-in-person contest like this. And yet, as you likely remember, Nintendo shut that right down with a cease-and-desist right out of the pits of hell for the absolute gall of not using official Nintendo resources instead which did not, and do not, currently exist. (Outstanding move, guys)

Since then there has been considerable backlash levied right at Nintendo's head, and may I say rightly so! This was such a dumb decision on every level that it cannot be justified through any means except for the coldest and most technical imaginable; but that doesn't make it good for the community or, indeed, the company! Ignoring the pandemic which is perhaps one of the largest context-shifters of our lifetimes, try to think of the potential positive exposure to the oldschool Nintendo scene that the numbskulls in the legal department just signal boosted and poisoned in one-swift move. That's a lot of unnecessary heat they bought on themselves out of nowhere and for no reason. Then there was the fact that no one was really stealing from Nintendo in this situation, the games themselves were legitimately purchased and the software wasn't replacing anything that Nintendo themselves were providing. No one was directly profiting from it. At the end of the day, I believe it was an overreach of power, and it seems the general consensus leans my way too.

But what if I told you that the Big N managed to take things one level further, and double down on their folly to really set the fanbase ablaze? This actually extends past the Smash Bros. incident and even the more recent scuffle wherein a Splatoon 2 finals livestream was cancelled for reasons that most assume fall once more on Nintendo. For you see, on Esty there was an independent content creator who sold a decent number on Nintendo themed products... (You see where this is going, right?) Now on the surface this probably seems a lot more sensible then Nintendo's other actions. Much more in line with the Streamer ban than the Smash/Splatoon debacles, but as always there is context which shakes things up. You see, this creator received their cease and desist for creating and selling Switch Joycon shells which were themed after Etika.

Now if you are unfamiliar, Etika was the online persona used by one prominent Nintendo-themed creator who, last year, took his own life in a shocking incident which shook the content creation world. These Joycon shells (Remember again, that these are shells. Not even the hardware itself, which can still only be bought from Nintendo) honoured this man's legacy, who many still love and miss, whilst sending the profits to charity. Oh that's right, Nintendo went after a charity-case honouring a famous, deceased, Nintendo fan, because it was infringing on the trademark of the Joycons. (Yeah, they couldn't even get a copyright out of this one so they want straight for trademark.) I'm not going to lie, even as I squint my eyes to see the legal side of this I cannot see past the utter disgust this one evokes. I'm not usually one who gets this way, especially about Nintendo who aren't usually worth it, but there's just a special level of uncaring in this act. If there was ever a situation to turn the other cheek, this was it, and every single last it of vitriol incurred is, from this point forward, entirely self inflicted.

Oftentimes Nintendo get criticized for being too family friendly and not willing to take the sorts of risks that other studios are, and whilst that typically comes with a defence of, "there's nothing wrong with playing things safe" let this be a direct contradiction to that line of logic. Fandom and artisitc expression has changed so much in the last few decades that current copyright law has become a lethargic holdover which is indicative of a long-dying way of looking at ownership and enforcement. Most with their head in the right decade can see that and, until seemingly impossible reforms come, can act in a way that is fair and embracing to this new age of expression and artistic freedoms. But not Nintendo. Oh no. Like the Dinosaurs they are, they must cling to the old ways terrified of being made extinct, never realising that the greatest danger to their future right now is their own damnedable conduct. Enough is enough, Nintendo is in desperate need for high-level reshuffling before they shoot themselves beyond repair. (Or at the very least a semi-competent PR department) But we all know they won't do that. Nintendo are masters of playing it safe, even when they risk everything by doing so.