NES Visual Compendium Dispute Comes To An End, Kickstarter Resumes For Final 24 Hours

So, Nintendo has almost certainly wangled some money out of them. Likely a percentage of every copy sold.

About time I got some good news to top up this zany day.

Strange title, but glad to see this back on track.

@Kirk Maybe, maybe not. But since Nintendo owns all of the artwork included in the book, they have at least as much of a right to be paid for that work as does some random entity that has zero ownership of it. I don't understand why this concept is so controversial for some people.

@Kirk good for them.

@-DEMISE- Because, that's really supposed to only be be true if you use the artwork directly and sell it for money in and of itself or as some kind of official thing. Nintendo's copyright is of course protected—to a degree. But, if you use a bit of art from some source here and there, like a scan of the back of a box or whatever, in say a book about Nintendo, that should rightly be and mostly is protected under Fair Use law. You are legally allowed to use snippets of even Copyrighted work here and there under certain circumstances. Otherwise, every single person in the world who's ever used any of Nintendo's art, even screens of its games, for any purpose whatsoever (if money is even remotely attached, and not necessarily directly either) would legally owe Nintendo recompense—and that's just absurd. So, maybe this book used just a bit too much art, but that's largely and arbitrary amount. For example, a book that it literally filled from front to back with screens of Nintendo's games, but it's only one or two screens from each game, should be totally and utterly be protected under Fair Use law—because there's literally less than maybe 0.001% of each of those copyrighted works used in each case.

@Kirk I understand all the different angles of fair use, but this isn't just using "snippets" of Nintendo-owned art. It's literally just a book full of Nintendo-owned art, with what seems like very little in the way of commentary or interpretive information that would help qualify it as fair use.

@-DEMISE- Well, I've not read it, so I can't say. It does, however, appear that some kind of agreement has been reached either way.

@Kirk Yeah, it is pretty sad. Companies always have a way.

I'm surprised they were allowed to keep making this. A lot of the content is just screenshots of NES games. That seems like it would go beyond fair use, since such a large part of the book's content is used without permission.

Even if they made a deal with Nintendo, you'd think the other companies which art is used would want to prevent this from being released.

@Kirk I'm fine with that. it's clear Nintendo was never going to release something like this on their own, while at the same time, they do have every right to say, don't publish our properties. It would have been much worse if Nintendo just issued a cease and desist but never bothered to put out their own version of what this is.

@-DEMISE- @jimi I completely agree. You even have to pay thousands of dollars to sing happy birth day on TV! So why do people complain about Nintendo specifically!? I'm not talking about anyone specifically (on this article. >.<) but the haters are just nuts these days. Everything Nintendo does is wrong; next thing you know they give every Wii U owner $500 and people will complain that they only have a 3DS, then boycott Nintendo. Then when other people say those who don't have a Wii U should've gotten one, they'll just blame the poor marketing.

@PieNinja It's only wrong when it's wrong, and I'll say so when I believe that's the case. This book contains basically a screen or two from each game for the most part, so I think Nintendo is way pushing its luck suggesting it's owed some kind of compensation for the use of said screens. And if you think it's fair that every single mag/website/video or whatever that ever displays just a few screens from some of Nintendo's game owe's Nintendo a royalty, you are just crazy, and you're plain wrong. The fact certain people think otherwise is where the conflict arises.

Just imagine if Mean Machines had to give Nintendo a cut of the profit every time it featured an image or two from Nintendo's game in its issues (I just use Mean Machines because I love linking to the pdf scans of that mag every chance I get):

http://www.meanmachinesmag.co.uk/pdf/zelda3snes.pdf

http://www.meanmachinesmag.co.uk/pdf/supermario4snes.pdf

http://www.meanmachinesmag.co.uk/pdf/supertennissnes.pdf

http://www.meanmachinesmag.co.uk/pdf/simcitysnes.pdf

http://www.meanmachinesmag.co.uk/pdf/fzerosnes.pdf

http://www.meanmachinesmag.co.uk/pdf/pilotwingsnes.pdf

http://www.meanmachinesmag.co.uk/pdf/mariotwones.pdf

http://www.meanmachinesmag.co.uk/pdf/drmariones.pdf

http://www.meanmachinesmag.co.uk/pdf/nintendoworldcupnes.pdf

http://www.meanmachinesmag.co.uk/pdf/mariobros3nes.pdf

It would be totally and utterly absurd. And this is exactly why the Fair Use law exists.

@Kirk Btw I wasn't referring to you at all. You didn't say anything hateful. I agree there are circumstances where it is unnecessary, but looking at the book in this scenario seemed like to far. My mom originally showed me it and I was completely surprised it didn't infringe in copy right. So when it was shut down I wasn't surprised. What I was saying about haters though was about other scenarios, because lots of times people complain about Nintendo being to over protective of their franchises, when they really aren't. Sometimes, but not a lot.

@PieNinja Well, I just get defensive when it comes to stuff like this, because I'm always in the favour of the consumer or the little guy over the mega corporation, just on general principle. When I think the consumers or little guys are abusing their rights I'll say that also, but most of the times I see this kind of stuff it's actually the mega corporation that is trying to stretch the law just a little too far in its favour—and I see a lot of that from Nintendo when it comes to stuff like this.

@Kirk Yeah I understand. I was trying to be mean at all though, sorry if I sounded like it though.

@PieNinja No probs. And apologies if it seemed like I was going mental at you. But, if you've been in here a lot, you probably already know that I go mental at most things and most people at one time or another. It's almost a right of passage at this point. lol

@Kirk Um, have you even looked at this book? It's not at all like that magazine. There are no game reviews, and practically zero commentary or original content of any kind. It's a book of full-page images, much of it being cover/instruction booklet art. And that's about it. I'm not surprised that you think it's wrong for Nintendo to get paid for this sort of thing, because you pretty much always think it's wrong for corporations to claim ownership over their own property. If you want to give away your work for free, then by all means go ahead and do that. But fortunately for those of us that actually want to be compensated for the things that we own and produce, there are laws that facilitate that. Yes those laws can be abused by trolls, but Nintendo aren't trolls, at least not in this case.

But all of this is irrelevant anyway, because this article doesn't say anything about Nintendo getting compensated for this book. You're just jumping to that conclusion because you like having a reason to get mad at Nintendo.

@-DEMISE- On the Kickstarter it looks predominantly like two full pages showing a single [partial] screen of one particular game, and with a little text blurb, repeated throughout the book. Along with some other features and stuff too.

Literally, the screenshot in the article above shows you a perfect example of what most of the pages look like:

Technically speaking, there's probably more of Nintendo's "copyrighted" imagery in a single issue of Mean Machines than in this compendium (when you consider that one of those two page spread screenshots in the compendium would be a single screenshot of many in the average Mean Machines review).

Every single image I just posted above wouldn't even constitute enough for a single review in Mean Machines.

@PieNinja That's just Kirk. He gets mad over basically everything along these lines.

@Kirk It's a picture book full of pictures that belong to someone else. And not all of it is just game screens, some of it is original box art, like this: http://images.nintendolife.com/news/2016/06/bitmaps_next_visual_compendium_turns_its_attention_to_the_nintendo_entertainment_system/attachment/3/original.jpg

@-DEMISE- Yes, I know there's more than just the screenshots (although that appears to make up the bulk of the compendium from what I can see), but watch this trick. . . .

Edit: Look at all the official Nintendo art in the reviews in these pdf scans:

http://www.meanmachinesmag.co.uk/pdf/fzerosnes.pdf

http://www.meanmachinesmag.co.uk/pdf/mariobros3nes.pdf

http://www.meanmachinesmag.co.uk/pdf/supertennissnes.pdf

http://www.meanmachinesmag.co.uk/pdf/zelda3snes.pdf

From box art, instruction manuals, official comics, and all.

It's like magic or something!

@Kirk Wow, used to love reading Mean Machines, thanks for the share!

@Honelith I STILL love reading them from time to time.

They don't do reviews like that anymore. I mean, just for comparison, go look at the average Nintendo Life review*, and compare how many images you get, how many opinions you get, how much detail on the specific game you get, how broken down and explained every aspect of the score is.

http://www.meanmachinesmag.co.uk/pdf/zelda3snes.pdf (a Mean Machines review example)

Better times, in many ways—and not even nostalgia.

*https://www.nintendolife.com/reviews/wiiu-eshop/pokemon_ranger_guardian_signs_ds (literally the first one that popped up when I quickly checked on the site)

@Kirk The difference, which I would assume you know since you seem to have a lot to say about this subject, is that such artwork is generally always considered fair use when it is used in the context of a review, like the ones you posted, but simply selling a bunch of delineated pictures where the pictures themselves are the whole draw is generally not considered fair use. A review is original content, and the pictures included in them are not the main point.

@-DEMISE- Well, that's probably exactly what Nintendo said. It's a fine line though, and each of those pages does contain at least some text and content about the game, so it's not just an image reprinted with no editorial content to go alongside it. It just happens that these images are large, so it creates the illusion that somehow there's more copyrighted material there or something. But, imagine if they'd literally only been a typical screenshot size as seen in the Mean Machines example (and only partial screenshots at that), with exactly the same text as in the compendium right now. . . .

And, let's just be clear here: It's a partial image of a single screenshot taken from an entire video game that is comprised of literally hundreds of thousands or even millions of said screens, which has been scaled way beyond normal display size and resolution to cover two pages in a magazine. It's not like these guys have taken the entire game content and posted it right there on the page, or even close to it. With the game covers, sure. they are almost literally just copied and pasted, but surely it should be acceptable to include a handful of those too in among a book that is at least a couple of hundred of pages long (likely more since all the stretch goals have been blown away).

Like I said, I don't think these guys are doing anything untoward; I just think Nintendo is pushing its luck and the limits of the law in order to make another quick and easy buck. But, I guess the same could arguably be argued about the guys making the magazine too—not by me though.

@Kirk Thanks for linking those pdf's!

@LemonSlice No probs.

@Kirk Honestly it is beyond baffling to me that you're actually trying to argue that the people who ACTUALLY OWN the artwork in this book, and are the only ones legally entitled to make money off of it, are somehow "pushing their luck" in (presumably) citing the law to make money off of it, and yet the people who simply compiled that artwork and slapped a cover on it for the specific aim of making money off of work they DON'T own are somehow totally innocent and should be given a pass simply because they're "the little guy".

The fact that one party is smaller than the other and that you clearly have some very negative feelings towards Nintendo because they're a larger company than the one that's profiting off of their work doesn't make the act of profiting off of someone else's work somehow more noble or just. Your ideals are completely backwards on this. I don't personally think this book is that egregious of an offense on Nintendo's copyright, but still, Nintendo DOES own the images in the book, and it's not even remotely wrong for them to not want people making money off of their stuff if they can help it.

And again, do you know that Nintendo are actually taking a cut of the profits from this book? Because no one has said that's the case, as far as I can tell.

All's well that ends well. I'll be getting a copy of this. Love the arcade booke the produced.

@-DEMISE- Kirk tends to argue that corporations are evil. Doesn't matter that people that worked hard for those corporations to produce something and that there are laws and procedures in place to protect those ideas and products from being stolen or misrepresented. Individual (or little guy/little company) is always right with him. Especially when the individual is at fault. I'm sure I'll get blasted for saying so but that is what I've observed from his comments and the few interactions I've had with him. I'd leave it alone if I were you.

@Ryu_Niiyama Oh, I know all about the kirkmeister and his penchant for defending the indefensible. I generally try to avoid getting into it with people on here, but in certain cases where common sense seems to be completely lost on someone, it's hard for me to hold to that rule.

@Kirk I hope you're not suggesting Nintendo is in the wrong for doing what you say. Just saying, Nintendo should care when products try to cash in on their original work, and I'll support such products only as long as they work with the company to make sure they are legally in an amicable position and not seen as trespassing on intellectual property, which we have a real problem with these days.

@Damo "practically zero..." meaning that relative to the images on each page, the text you and whoever else have written isn't substantial enough to make it a clear-cut and obvious case of fair use, at least not at first glance, which I'm sure was the reason Nintendo filed a claim against the book in the first place. Are you really trying to say that the art assets in this book aren't the primary selling point, and that those images are somehow secondary and complimentary to the original text? Because from what I've seen, it seems like the art and game screens are far and away the main priority, as evidenced by the term "visual" in the title.

Anyway, like I've already said, I don't really have a problem with this book. I think it looks great. And again, I have no idea what kind of deal was settled on with Nintendo. I just find it incredibly peculiar that people think Nintendo are somehow a bunch of blood-sucking monsters for deigning to believe that they should have control over and receive compensation for property that they own, as though the party that sells someone else's intellectual property is more entitled to the money that material brings in than the party that actually created and owns it.

Seems great although I think I prefer more written pieces with my video game books. Read-Only Memory's Mega Drive book is probably my favourite book on video games and a big part of that is the design, layout and approach. There is tons of writing and interviews but also tons of images from sprites, backgrounds, concept art, box art... it's incredible!

@Damo maybe it's the design, the image spreads really seem to dominate over the words... saying that it does look nice.

@dronesplitter I'd say it's in the wrong when it knows fine well it's taking the ****. Nintendo knows when a company is properly violating its copyright and when it's not—and it can deduce this at a quick glance of the material most of the time. And, it if chooses to go after all these companies that I'd say really aren't violating its copyright, then I say it's in the wrong, and it's just doing what it's doing to try and make a quick and easy buck rather than because it has any legitimate claim half the time. I'd say that's likely the case in this case. That's my take on it.

@-DEMISE- Again, that is precisely why the Fair Use law exists. We all know Nintendo owns the original artwork and has the copyright on it; that is not the argument I'm making here. My argument is that Nintendo is the one stretching/abusing the limits of said law for a quick and easy buck, not the other guys.

I take issue with any company any time I believe it's abusing these laws to make easy make money off of people that are actually following the law, from what I can see at least, and legally shouldn't have to give Nintendo any money for doing so. And the fact they are using some of Nintendo's art in images is ultimately irrelevant to the point if they are doing so within the Fair Use law.

But, if I'm wrong, I'm wrong. I've not said it isn't possible that Nintendo is totally within the law here and the other guys must therefore matter-of-fact be breaking the law as a result (Nintendo simply cannot have a legal claim of any copyright infringement unless these guys are literally breaking the law); I have, however, said I don't think these guys are breaking the law, and I think Nintendo is the one abusing the law here.

I don't know for a fact that Nintendo is taking a cut of the profits, and I never claimed I did know for a fact. But, I'd suggest it's almost a certainty. That's usually what "have come to some agreement" means in situations like this.

@Kirk Well then I have to totally disagree with you. Nintendo is fully in their rights and I support them. Sad to see you don't.

@dronesplitter And I say you are wrong. No one has shown me a clear example of where any content we've seen from this book thus far is reaching beyond the limits of Fair Use law.

This doesn't mean I can't be wrong; I'd simply challenge Nintendo's claim in this particular case, any day of the week.

And, even if Nintendo is in the right, it can only be on a couple of minor elements imo (certainly almost none of the stuff we've seen thus far could even qualify imo), which I'd personally rather remove before giving Nintendo a dime (if I were these guys).

This seems like a fairly pointless argument given that Nintendo haven't stopped the publication of the book and we have no evidence to suggest that they have demanded royalties. All that we know is that the book says it is an unofficial compendium.

You know, having read the original article content again . . .

It would be very interesting if it turns out that all Nintendo really did was ask them to change a few aspects that made the original design look a bit too official, like alter the title on the cover slightly and adding clear indications to the book and Kickstarter that it is an unofficial creation only. That would do two things:

1. It would make me look like a bit of a douche for getting all up in Nintendo's grill when it actually only asked for a few small changes but ultimately left these guys to make their book as originally intended without any notion of giving Nintendo a share of the profits. Although, it would surely be a bit of an overreaction for Kickstarter to totally remove the project if that were the case, if it were just an issue of requiring a few small visual alterations (the project images and text could just be updated in realtime to reflect the requested changes).

2. It would totally and utterly backup my assertion that Nintendo really doesn't have a legal claim of copyright infringement just because you happen to use a bunch of screen grabs and a few box images in a 240+ page compendium where it's entire purpose is to be about celebrating its work and legacy. Otherwise, if there was a clear copyright violation (as Nintendo saw it), it absolutely would have asserted its claim (see "Nintendo YouTube monetisation" if you need an example of this).

Something to think about. . . .

But, I'd still be very surprised here if Nintendo wasn't claiming proper/full copyright infringement and hasn't wangled a percentage of the money out of these guys, just like it did with all the YouTube guys posting Let's Plays of its games. And, if that is indeed the case, I stick with my original assertion of Nintendo being a douche that's stretching and likely breaking the limits of Copyright law and crapping all over the Fair Use law, as I understand these things.

Dang, the arguing on this sight is worse than I thought it'd be when I joined. >.<

(NOT TRYING TO GET INVOLVED!) Just saying there are rights to both sides (I couldn't even reed the whole thing!) and even when I have my side of the argument I listen to the other. And I'm also pointing out that people seem to just mostly disagree on here.

Should be interesting to see somebody do this to Disney. You know, screenshots and explaining all the different characters like Mickey Mouse and everybody else that Disney is quite aggressive in defending. Then again would that be infringement?

The only thing confirmed so far is. That Nintendo had a problem. That the seal changed so that it does not replicate the official Nintendo seal. And that the word unofficial was put into the title and the word Nintendo was removed.

I don't think I see any problem with this. But even if Nintendo did demand monetary compensation, how would it even be determined? Maybe we can determine it by how many different pieces are taken from Nintendo? Like you know one on every single page of the book. Maybe instead we can detail how much area on the page each of the copyrighted photos take? Oh wait, the argument is that the photos are just very large. How about if we split based on how long and how much work hours had to be put into the quality? Oh, the amount of time it takes to make a short interview and type up the answers? Very very low. The amount of time required to make, by hand, individual sprites, the coding for the game, the creation of the entire world, storyline, etc... ?

I don't know. Maybe Nintendo was in the right here?

@LordGeovanni Oh Disney is famous for how far they'll go to protect their copyrights. They'll shut down anything and everything that uses their property without permission, if they know about it. For example, a few years ago there was a daycare center not too far from where I live that had painted Disney characters all over the walls of the place. Somehow Disney found out, and they sent a cease and desist notification to the daycare, basically threatening to sue them if they didn't paint over the unauthorized paintings of their characters. Disney would be disgusted at how relaxed Nintendo are with their ip compared to Disney.

@Kirk You seem to be missing the entire point of this conversation, which conversation (since we don't know what kind of agreement was made) is a purely hypothetical one, and the point is that you are literally saying that Nintendo are not entitled to make money off of their own property, but another for-profit entity IS entitled to make money off of Nintendo's property. It really is that black and white.

Fair use is routinely murky and difficult to navigate. It is NOT always black and white, cut and dry. But if this book is covered by that, then that will ultimately bear itself out. But that doesn't mean that you will or should have a clear path to the bank when you're selling something that is built on top of copyrighted material that you don't own, because you will ALWAYS run into speed-bumps when you start trying to profit off of work that someone else owns. If you can't see that, then you might just be lacking a conscience.

@-DEMISE- No, I'm literally saying that in certain situations it is 100% legal and with their rights for these people to make money using some material that is part of Nintendo's copyright, totally and utterly irrespective of it being Nintendo's copyright—that's basically the exact purpose of whole Fair Use law I've now mentioned multiple times. And, I'm saying if they are doing this stuff within the law, then it is actually illegal for Nintendo to break that law and claim money and whatever else from them. And, I've never once said that this is what has happened matter of fact; I've simply said that it's more than likely this is what has happened here, especially given the recent history of Nintendo going after everyone that even sniffs its copyright these days.

You just need to get it through your head that it's you who's clearly interpreting what I'm saying incorrectly, not me interpreting the law incorrectly.

@Kirk I've acknowledged fair use several times in my replies to you, so it's odd that you seem to think I'm unaware of the concept. Anyway, I'm not misinterpreting what you've said. You've made it clear a thousand times in this article and countless others what your stance is by jumping to the conclusion that Nintendo are in the wrong every single time their copyrights come into question. We get it, you dislike authority/large corporations/people who defend large corporations blah blah blah. The problem is that you always let your own personal bias against anyone and anything that happens to be in a position of power predetermine your assessment of every single story like this before you've even heard a single detail that would support your conclusions. It smacks of irrationality and entitlement, and it gets old, I'm afraid.

@-DEMISE- Well, I tell you what: Show me that Nintendo isn't in the wrong here. . . .

And, I don't mean just you believing it has to be in the right, just because. That's just you doing the exact same thing as you're accusing me of doing, simply on the other side of the argument.

So, show me Nintendo is in fact the good guy and not the bad guy in this particular case. . . .

Do that, and I'll apologise for going so hard on it this time.

@Kirk I'm starting to feel like a broken record, but okay, I'll say it again: we have no idea what kind of agreement was made here, or if Nintendo is taking a cut. You're just jumping to that conclusion because you like having a reason to vent your righteous indignation. So tell me, how am I supposed to defend something that I don't know a single detail about? Anything I could say would be based on hypothetical scenarios, and that's a waste of time, so I'll pass.

@Kirk We seem to see eye-to-eye on a lot of issues
@-DEMISE- Read on for a detailed look at why Kirk and I feel that this is protected fair use.

If Nintendo did ask for compensation, then they are in the wrong. If not, then it appears they have made a mutual decision with Bitmap to modify some parts of the production to satisfy both parties.

First, let's look at the facts of the book:
Nintendo created the games featured in the books, and have a copyright on all parts of the games, including box art and screenshots.
Bitmap used said box art and screenshots in their book.
The box art and/or screenshots were supplemented by, "a 200 word review/critique of the game." Some were supplemented further by 2,000 word analyses.
The book is being sold for profit.
The book is clearly labeled as "unofficial"

Now we need to look at Fair Use. Since I live in the U.S., I'll be looking at our fair use laws. They may be different in Europe which is generally more restrictive of individual freedoms than the U.S.

The important part of our fair use laws:
"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work."

Now we go step-by-step to see if this production falls under fair use. The first, and arguably most important part of fair use is the first point, which is often referred to nowadays as "transformative work". Stanford University sums it up as, "If you are commenting upon or critiquing a copyrighted work — for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes." In this case, Bitmap has reproduced some of the copyrighted work by Nintendo (screenshots) and provided commentary in the form of the 200 and 2000 word editorials. The work is transformative, so it passes the first point.

The second point deals with the nature of the published work, being fictional or non-fictional. A fictional work is more protected than a non-fictional one, but both can be deemed fair use if other criterion are met. In this case, Bitmap is using Nintendo's fictional work in the form of video game screenshots. It also deals with whether or not the work has been published yet, which the games have been. You can check all of this up on either Wikipedia's article on fair use, or a Stanford law professor's article on fair use. I will link both below.

The third measure of fair use is how much of the work was used. A video game is many hours long, and is composed of thousands, or even millions of different possible screenshots. Showing one single frame of a game with commentary is most assuredly protected by fair use. This is a no-brainer. Bitmap is using maybe 1/100,000 of a game's total screens to comment on.

And the final factor is composed of two parts:
1. Does the book affect Nintendo's possibility of obtaining profit from a similar medium?
2. Does the book render the original works meaningless, thus detracting from Nintendo's sales of the original work.

The second criterion is an overwhelming NO. A screenshot, or even a bunch of screenshots, can not take the place of a full, playable video game. Seeing a screenshot of Mario will not make someone say, "Well shoot, I've seen the screenshot, so I really don't need to play the game!" The first criterion is a bit harder to determine, and it could really go in favor of either party.

Basically, we need to determine if, by making this book, it potentially affects Nintendo's shot at making a similar book. Previous court cases have sided with the copyright holder on this issue, as in the cases of (Twin Peaks v. Publications Int’l, Ltd., 996 F.2d 1366 (2d Cir. 1993).) and (Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).). Both of these cases were about a third party making a book (one, a Seinfeld trivia book, the other, a complete guide to Twin Peaks) that interfered with the copyright holder's availability to make a profit by doing the same thing. Here we see a similar case of a third party making a profit off of something Nintendo could be profiting from instead. The one caveat to this is that Bitmaps wasn't allowed to get interviews from current Nintendo employees, which an official Nintendo published book could do.

So now we overview the facts of the case, and weigh the scale to determine fair use:
1. One of, if not the biggest factor, is "is the work transformative", meaning is there added content that was not seen in the original work. As evidenced by the 200 and 2000 page reviews on single screenshots, the answer is clearly yes. Big points for Bitmaps.

2. This is less of an important issue, as it deals with non-fiction getting a little more leeway for fair use determination than fiction. In this case, the work is clearly very transformative, so it is a non-issue.

3. This is probably Bitmap's biggest advantage. In games composed of thousands, if not millions of screens, they are only using one, and supplementing it with commentary. They are using so little of the original works, that it basically isn't even comparable.

4. This is the trickiest one of them all. One one hand, Bitmaps is using so little of the medium, in a format that is totally different than the medium, so it has no chance of replacing the medium. A screenshot of Mario doesn't act as a substitute for playing Mario. However, the issue stands that Nintendo can still make money off of a similar book. Does Bitmaps' book take away from Nintendo's share in the "visual compendium" market? Precedent set by previous cases would say yes, but each of those used a more substantial portion of the original work than what is used here. Nintendo has the opportunity to make a visual compendium, and theirs would include exclusive content unavailable to Bitmaps, as well as the Nintendo Seal of Quality. This may be why they wouldn't allow Bitmaps to speak to current employees (or vice versa) or use a modified Nintendo Seal of Quality.

Evidence for a fair use ruling:
+Uses a minute amount of original work
+Uses original work in transformative way
+Does not replace, nor attempt to replace the original work

Evidence against a fair use ruling:
+Nintendo stands to make a profit from making a similar book, of which the market would be affected by this book being released.

This is my full analysis of the case. I believe that the work is fair use. Both sides have been presented. The unfortunate part about fair use is that it is totally up to the interpretation of the judge as to what is fair use and what isn't. Normally, we can say, "This is the law," but in the case of fair use squabbles, we have to say, "This is the generic ruleset, you rule how you see fit," which creates problems for fair use precedents and fair use debates like this.

Here are the sources I used, in case you want to learn more about fair use:
http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
https://en.wikipedia.org/wiki/Fair_use

Oh, and @Kirk, since you made the accusation that Nintendo is taking money from Bitmaps, the burden of proof is on you, not the other way around. Innocent until proven guilty, not the other way around

@happylittlepigs Oh wow. I'm sure you felt like you'd be impressing people by posting an entire wikipedia article in your comment, but the end result is that you are simply annoying. First, it's really none of your business how or why I know just about every conceivable angle of "fair use" as it relates to software and quite a bit about its application in art, but trust me when I say that I absolutely have zero need of schooling in this subject by the denizens of Internet U.

And I promise you that no case that hinges on fair use is ever a straightforward affair, they're never easily resolved, and the process almost always leans in favor of the original copyright holder. So even if you THINK your little pet project is a black and white case of fair use, it will be a steep hill to climb if you ever have to prove as much when challenged. And also trust me when I say, as someone who's had to sit through a painful amount of arbitration over copyright disputes, that your "conclusions" are almost all completely wrong. Just horribly, horribly wrong. As in please don't tell me you have aspirations to become a patent attorney or something, because yikes. (hint: Nintendo's copyrights cover their characters, their names, and their respective likenesses, not just the games they appear in )

As for the rest of your comment, it's virtually pointless, because like I've already said damn near a dozen times just to Kirk, NO ONE KNOWS WHAT KIND OF DEAL (if any) WAS MADE BETWEEN NINTENDO AND THE PUBLISHER OF THIS BOOK. Do you understand that? Because this entire thread revolves around the fact that people like Kirk, and now you, can't seem to comprehend that concept. I could go ahead and write you a few thousand words on why that is, but I don't like to come off as condescending, so hopefully you can figure it out on your own.

@happylittlepigs Great analysis of the whole Fair Use stuff imo.

Wrong about the "innocent until proven guilty thing", because I'm not in a court of law and I've not made any absolute, factual/legal, or formal claims against Nintendo that require proof.

I simply said this is ALMOST certainly what happened. I would say, however, that prior example, and the very fact that we know it was Nintendo who brought the copyright claim against these guys in the first place, gives me enough reason to make the accusations I made in the casual/informal manner I made them. Doesn't mean that what I suggest happened is 100% what actually happened—and I've never made any claim otherwise—but it's enough that I am perfectly reasonably entitled to make such an informal/casual assertion.

However, I was the one that did the asking for any evidence that actually disputes my own claims—no one was asking for legal proof of what Nintendo did or did not do prior to this—so the burden of proving my assertions false, which was basically the assertion made by @-DEMISE- on me, was automatically put on him once I specifically asked him to prove I'm making false assertions.

He's the one basically accusing me of false accusations, and I'm the one asking him to prove it; the burden of proof now lies on him to prove I am making false accusations.

If, however, Nintendo wishes me to backup my assertions regarding its actions—let it ask me to do so. . . .

@-DEMISE- "So tell me, how am I supposed to defend something that I don't know a single detail about?"

You're not, and neither am I. We are not in some court of law or whatever. So shut the **** about the fact that I can't prove matter-of-factly that Nintendo is getting a cut.

I do not have to prove my assertions in your home made court of law. I have made my assertion in an informal/casual manner, stating clearly from the very first post that it may not be 100% the case ("almost certainly" is not "absolutely and factually what happened"), and my complaints/issues are simply based on my assertion that this is likely what happened, especially given the previous examples of similar situations where Nintendo has made copyright claims (the whole YouTube monetisation debacle being a great example).

I say it's perfectly reasonable of me to make the assertion I made given the bits of information we do have plus all the prior history of Nintendo making copyright claims and said issues being resolved by it receiving some kind of financial payment(s). But, you're the one that keeps acting like nothing I say is valid unless some kind of legal evidence is provided to back up my assertion. So, I say to you, prove Nintendo didn't take a cut and I'll stop making those assertions. Because, I don't give a flying **** if you think I somehow need to prove in your home made court of law that Nintendo has taken some money before making any casual/informal assertions or claims against it, but you somehow think factual evidence is required here for me to even suggest such things.

So again I say, show me actual evidence/proof that I am guilty of making false accusations against Nintendo and I'll stop making them.

Until then. . . .

PS. Just for the record: I went through a two year long legal battle with Warner Bros regarding a Trademark dispute a won. And I handled all the legal stuff entirely by myself. So, I too know about about the laws around all this crap, including Copyright law. I say that much of what @happylittlepigs said above is perfectly legit, and is exactly the kind of stuff I'd be arguing if I were Bitmap books vs Nintendo in this case.

@Kirk Congratulations on winning your case, but this conversation is just going around in circles now. My overall point is not that every single use of Nintendo's material is automatically illegal, or that it's impossible for fair use to protect a project like this book; it's that you are wrong for automatically jumping to the conclusion that Nintendo have done something wrong before you even know what it is that they've actually done, if anything, and that your reason for making that assumption is that you're emotionally predisposed against large companies, and I guess now we know why.

@-DEMISE- Is it any more or less wrong to jump to the conclusion that it hasn't done anything untoward and/or just let if off if it has?

We don't know if it's in the right or wrong, but I'm not just gonna sit here a say ****-all in the hopes that Nintendo is innocent here because that's what makes the fanboys most happy to believe—and certainly it's what Nintendo wants me to do by default each and every single time it files a copyright claim.

Here's what we do know for a fact: Nintendo is the one that filed a copyright notice against the guys making this book. This resulted in their Kickstarter getting removed. And, as part of some "agreement", they've managed to do enough to get their Kickstarter reinstated—and that "agreement" may or may not involve handing Nintendo a share of the profits from each copy sold (or something along those lines).

If there's even a chance Nintendo is being a **** here I'm going to call it out. Now, since we'll likely never know either way, I'm calling it out. If I don't call it out now, there's a chance it will never be called out—and what a true crime that would be if it actually is the bad guy here?

Now, if Nintendo is the good guy here, let Nintendo defend itself—it seems all too willing to step up at even the slightest sniff that someone is ******* with its copyright.

@Kirk Um, yes. It is definitely more wrong to accuse someone of doing something wrong or breaking the law when you have zero evidence to support your accusation than it is to assume they're innocent because you have zero evidence to the contrary. That is why in justice systems in countries like the United States, for example, innocence is the baseline, i.e. Innocent until proven guilty. And since you're the only one here that's just outright concluded that one side has blatantly done something wrong, you're the only one here who has violated that principle. But hey, at least you're consistent.

@-DEMISE- And, this is exactly what corporations like this count on people like like you saying. They file all these spurious "copyright" claims that end up getting "settled" behind the scenes and no one is allowed to talk about it, and all the ignorant sheep are left none the wiser that these corporations are being insidious *****. They basically get away with murder on a regular basis, and they use the very laws designed to protect the innocent to do this—and then have all the ignorant sheep minions fighting in their corner too.

This "agreement" that Nintendo reached almost certainly involves an NDA, otherwise we'd likely have been told already how the settlement was reached, just as matter of course (if it were all perfectly civil and painted each company in a positive light). So, why do you imagine no one is talking about the specific terms of the agreement?

If nothing dodgy happened here, let Nintendo and or Bitmap Books tell us the terms of the "agreement". If all Nintendo asked for was a couple of cosmetic changes and that's basically about it, it has nothing to hide. It would even make Nintendo look good, paint it in all kinds of good light, if it's all amicable and stuff and Nintendo's not fleecing these guys at all.

Again, all the signs that I see point to Nintendo being a bit of a douche here. If it's not, then let Nintendo fight its own cause. You're not its ******* corporate minion. Or maybe you are, in your own little way. . . .

@Kirk How does my take on the issue have any impact on the outcome of this particular case? It doesn't. What I think or believe has no bearing on this case. The ball keeps rolling regardless of what I feel, and I'm not in a position to stop it or advance it. I'm not a lawmaker, and I'm not a lawyer for either side of this case. Go write to your parliament representatives or whatever it is you guys have over there and lobby for copyright reform, since you obviously disagree with the existing legislation on this issue.

@-DEMISE- No, I don't disagree with the legislation; I disagree with corporations abusing it on a regular basis, which they absolutely do (and I know this for a fact, being one of the people WB tried to abuse with false claims of IP infringement, "passing off", and whatever other crap), and mostly getting away with it because none of us ever know any better, very deliberately so (even when they're matter-of-fact in the wrong they'll often just settle and then get everyone involved to sign an NDA as part of the settlement terms and conditions; which is precisely what WB tried with me).

So, again: If Nintendo is innocent then I invite it to say so. Let's put this stuff out in the open for once rather than it being all cloak and dagger. I'll issue a formal apology—just for the hell of it—if all it did was ask for a few cosmetic changes here and there and little more, and then dropped the case completely once those changes were made.

I also invite Bitmap Books to inform us of Nintendo's innocence and reasonability in all of this too. . . .

Until then, I'm calling it out just on the face of it—because, if it is guilty, it's not going to get away with it scot-free on my watch and just brush everything under the carpet, as it appears you're more than happy to let it do either way.

PS. Here's an actual article on my case against Warner Bros. (just for fun): http://www.edinburghnews.scotsman.com/news/games-firm-boss-in-legal-battle-with-bullying-warner-bros-over-business-name-1-2590283

Note: When we came to a settlement, I specifically made sure that one of the terms of the settlement was that I actually could speak about the case, which is something WB's lawyers fought very hard to avoid for a long time; they tried to get the exact opposite clause into the agreement, so it would all be brushed under the carpet and their complete doucheness would go unmentioned. But I was having none of it. They were total and utter douchebags, and I have the legal right to say so.

Now, Rockstar North on the other hand . . . that one I'm not allowed to talk about. But you can probably work out how that might have went.

I wonder how many other people in the world aren't allowed to talk about it. . . .

Edit: Oh, and by the way—and this is something I can't prove either—but I think Warner Bros even paid some secret "agent" to call me a day or two before they filed the Trademark opposition, in a really sneaky move: I was called by a woman during the early hours of the morning asking about my recently registered Trademark and claiming she was doing a show on new games companies. She asked me if I would be willing to be interviewed on TV. She wanted to know how passionate I was about my business and how long I'd been running it for. Then she started asking about my logo and wanted to know why I chose the specific name and colours. She said it was an interesting choice. And then she said she'd get back in touch with me." and a day of two later the Trademark opposition letter arrived, and I never heard from that woman again.

So, ya wanna talk about dodgy dealings by these giant corporations; nothing is beyond them.

@Kirk Well spoken.

@-DEMISE- So I'm somehow condescending for wanting to thoroughly overview the case instead of taking sides based on the article alone? Got it. I could have said, "this is defs fair use cuz they wrote reviews!" but instead I opted to thoroughly look at the case objectively, and provide both sides. I even said that, because the book stood to make a profit from something Nintendo could be profiting from instead, that Nintendo may have a case, given previous legal precedent. I linked my articles so that I couldn't be accused of pulling information out of my ass, and so you could check them out if you wanted to learn more about fair use as I did for this case. When you present a half-assed argument that leaves things out and doesn't address all parts of the problem, you get called on it. I learned this on my school's debate team. I did not want to get called out for only representing one side of the story, or one facet of copyright law, so I wrote a full answer addressing all parts of both the case and copyright law. Sorry if you're offended by my "condescending" long answer and source links.

@Kirk Do you not see the differences between your case and this one? Yours was about the use of a single, commonly-used word, which you were using in a context that didn't infringe on Warner's use of the word, and you weren't directly profiting from your use of the word. This case is about a book of full-page images of Nintendo's characters, which they own not just as it pertains to their use in games, but in any use of their respective likenesses, and it is directly generating income off of those characters. I mean it's great that you were able to face Warner Bros. and come out ahead, because their claim was clearly bs, but it's almost entirely dissimilar to this story.

I also think your case is making you at least a little manic in your reaction to stories like this, but maybe that's just the Scotsman/ginger in you. I'm not partial to either side here, so I'm not trying to "sweep it under the rug" or let Nintendo get away with murder, I just think you're being a touch dramatic and letting your personal experiences cloud your ability to rationally judge this case and others like it.

@happylittlepigs Half-assed argument? What argument? I never made an argument one way or the other. My entire point all along has been that it is crazy/wrong/useless/really bizarre/dumb to condemn a company, in this case Nintendo, for doing something that no one has even hinted at, and for which there is not one single shred of evidence. Your response was to give me a lengthy lecture and dissertation on fair use. If you can't see why that's condescending, that's not my problem, but you might want to make an effort of finding out why so you can avoid coming off as a dbag in the future.

And since you apparently missed it, Kirk is basing his reaction to this on his own emotions because he was apparently bullied by Warner Bros., but other than that he has nothing to go on here. And his reactions to any and every story this site posts involving copyright or trademark or patent or anything of the like are utterly predictable in their similarity to his reaction to this one in that he ALWAYS sides with what he considers to be the "little guy" no matter how indefensible that side is because his personal bias, which is glaringly obvious, drives him in that direction whether he realizes it or not. So hitching your wagon to that probably isn't wise.

@-DEMISE- Of course there's a difference between the specific cases. I'm not arguing otherwise. I'm simply showing that these corporations on the whole, and almost by their very definition, are not all nice and innocent as you may like to imagine, not even Nintendo. And I'm just saying that until Nintendo or Bitmap Books comes out and says it was all on the up and up, I'm calling foul play, or at least suggesting that a bit of money exchanged hands in order to come to some form of "agreement".

And, just trust me when I say that it's not my personal case(s) that have made me "manic" (although they certainly didn't help); it's what I have come to understand about the entire corporate entity on the whole in the last few years.

As JUST ONE example:

https://www.youtube.com/watch?v=Y888wVY5hzw

Nintendo's actions over the years, and certainly with some of its recent stuff like the whole YouTube debacle, tells me it's ultimately no better than any other large corporation. Money comes above all other considerations. And so, I will almost certainly come to the conclusion that anything it's doing revolves around the money over all else, especially in cases like this, until it has the courage and decency to tell me differently.

If it's the good guy then let us hear about it. If it's the bad guy then I want everyone to hear about it. And since we'll likely never know either way, likely intentionally so, I'm not giving it the benefit of the doubt. A corporation is not a person, it doesn't have humanity in its heart, only money. It does not deserve the benefit of the doubt; it has to earn it (no pun intended).

Again, these two videos sum up why I feel the way I do about all this stuff (about banks, corporations, governments, politicians, mainstream news media, rich elites, etc.):

https://www.youtube.com/watch?v=yuBe93FMiJc

https://www.youtube.com/watch?v=WibmcsEGLKo

Christ, even Mother 3 teaches us the same basic lesson too. If you've played it you will fully understand what I'm talking about.

People are trying to tell us the truth of this world constantly—which is the fact it's being ruined by capitalism, money, greed, power, control, banks, corporations, etc.—but most people are blissfully unaware of the truth. These people aren't making this stuff up. We're right to doubt the motivations of a large company like Nintendo in cases like this, even if it ultimately turns out it is all good and innocent this time.

But I say the burden of proof here is on Nintendo showing us it's the good guy, that's basically it's legal responsibility as a corporation, not me proving its the bad guy; it's my God given right to question those things in this world that I believe might ultimately be harming us all.

Of course, the red hair could indeed be part of the cause of all my rage against the system too.