It's safe to say that this news piece is really going to stretch the boundaries of what is possible to talk about on a family-friendly website, but before we begin: this article will not actually feature the image in question, but it's probably not safe to read at work, either. Then again, why are you reading about video games at work? Get back to your spreadsheets, Brian! Those reports won't file themselves!
Patreon has long been a (relatively) safe haven for NSFW artists, with the genre of "adult games" alone making some creators over $76,000 a month. A month. Good gravy.
3D artist AkkoArcade is not making the kinds of sums that have to be carted away in big bags with dollar signs on them like a Looney Tunes cartoon, but they are still making a pretty decent $1,481 a month with their 3D models on Patreon. These detailed models can be paid for, downloaded, and used for animations - except for one particular model, no thanks to Nintendo.
AkkoArcade created a very lifelike version of, erm, Bowser's Jnr. (which we're not linking here for obvious reasons), and put it up for download in June of 2018. Almost three years later, Nintendo of America evidently found it (or someone pretending to be Nintendo, at least) and issued a DMCA Takedown - a copyright claim that forces the creator to take down their artwork. We aren't lawyers, but we didn't know that copyrighting Bowser also involved his Dry Bones.
This isn't the first time that Nintendo has got their hands dirty with dirty content, either - they issued a DMCA takedown last year for a hentai-inspired game called "Peach's Untold Tale".
Things get a bit muddy when it comes down to what is and isn't considered "fair use", which allows people to use copyrighted material as long as their work is "transformative", which includes parodies, commentaries, or critiques. Adult creators can easily claim the "parody" defence, but taking on Nintendo in a legal battle is probably too much of a drain on resources to bother.
Still, in slightly more upbeat news, several of AkkoArcade's fans replied to their tweet to point out that the 3D rendering of Bowser's FLUDD must have been quite accurate for Nintendo to insist on its removal, thereby making it canon. Again, we're not lawyers, but that sounds water-tight to us.
So, what do you think? Was this a dick move by Nintendo, or is their case rock-solid? Let us know in the comments.
[source dailydot.com]
Comments 65
So can we expect an AO rated Mario game soon, then?
I am a man of honour, and I pledge not to prostitute Nintendo characters for 76K a month.
#RedRibbon
So does like a nintendo worker just Look up Nintendo porn and they happen to find this, afterwards tell nintendo and acts like he has never seen anything like it? I mean sound right to me.
I only think what Kate & NL tell me to think.<3
Yeah, copyright doesn't cover that sort of thing.
From high brow critique reflections to Bowser nudes. This site is a rollercoaster!
As Nike's recent lawsuit with the Satan Shoes demonstrates, companies can also bring you to court for using their copyrighted material in a way that's damaging to the public's perception of their brand. Porn especially tends to lose those court cases.
Why do people think it's okay to profit off of other people's IP? Why do you guys on this site act so surprised every time?
If I rip off your articles and videos would you be cool with it?
@Branovices A good point!
@KateGray Tell me Kate do you love giving us articles like this? like idk MARIO FARTING!!! (But My god was it fun to read)
@Ambassador_Kong
Yes it does.
@Snatcher This one took me longer than most news pieces do, because I had to run all my terrible jokes past the editors to make sure I wasn't being too rude. But yes.
Humans are weird.
@KateGray Well thank your hard work.
@Branovices Well put, I was just about to mention the same thing with different but less-recent examples (I would’ve either cited an incident involving TPCi and Seattle, WA bar running a yearly Pokémon-themed party or one involving a NSFW artist publishing a raunchy Pokémon comic with an actual ISBN).
@PBandSmelly SHHHHHHHHH don't think about it, your safer that way.
Put your Bowser Jnr. in, take your Bowser Jnr. out, put your Bowser Jnr. in and shake it all about... he he Hokey Pokey. Sry, couldn't help myself.
@westman98 @westman98 Parody is not actionable. See People vs Larry Flynt. Also see Mad Magazine and Robot Chicken. Both of which are sold for cash, both have depicted Nintendo characters in less than "family friendly" ways, and neither have been sued by Nintendo.
Copyright doesn't cover parody or satire.
I understand that there are some people that are into... interesting... things. That being said though, I have unfortunately seen weirder. Like whenever Isabelle is trending on Twitter.
@Heavyarms55
What you seem to forget is that this and all NSFW fanworks fall under parody. That's why Nintendo had to buy the rights to Super Hornio Brothers for it to stop being distributed.
So yeah, if Nintendo hasn't brought the rights to Bowser's horny peen then they are in the wrong in this case.
@damien33ad Yeah, that totally won’t lead down a dark path. Nope, not at all.
Where would one display said artwork? That's creepy weird.
@damien33ad
Yeah, lets revert humanity back by 60 years! Such big brain thinking there son~ 🙄
That is one damn long Koopaling though.
@PBandSmelly did you miss the whole bowsette saga?
Fandom is scary and often depraved. Not really surprising that Nintendo is so strict about their IP. Creeps gonna creep.
always interesting seeing fanart get copyright claims from companies. cause for the most part they dont bat an eye even if you made money through fanart commissions, but becomes an issue if you make TOO much money from it
Never thought I’d see these words arranged in the same sentence, but here we are.
Maybe Nintendo needs to go after this stuff because they are planning on releasing a new game titled "Bowser's Furry" soon.
@ImBackBB Nintendo also hired Robot Chicken to make an E3 sketch. The one where the one fan asks for Mother 3 and Reggie promptly lights him on fire.
Oh wow, although it would seem that Nintendo isn't supposed to be able to do that, they actually are within their legal rights to do so, so yes they can. Still, you gotta admit that is quite baffling how far they are willing to stretch out their copyrights in order to protect their IP and brand image, they are certainly dedicated, that's for sure.
Is it really worth filing DMCA on these Nsfw Nintendo stuff? Especially since they have to say with a straight face that they own parts of it?
Bowser's Inside Story 2 confirmed!
@ImBackBB Yeah, so in the future, if you start making stuff, and I start making a "parody" of it and making money on the popularity of your creation, you're gonna be cool with that, right?
Maybe there's an argument for parody, but some podunk smut artist isn't going to have the money to fight a legal battle with Nintendo. If these even was Nintendo. It could just as easily be Patreon not wanting to risk the Big N coming after them.
@Heavyarms55
LOL I don't make the laws, kiddo. 😂
Also have you never heard of Scary Movie? It was a parody of Scream but you didn't see Kevin Williamson trying to sue the pants of the Wayan Brothers who were profiting from it.
To answer you question: Not at all, as long as it's a parody of my work and not a straight up rip-off. I don't think the artist that modeled Bowser's dick was ripping off Nintendo anyway because they haven't designed one yet.
I think if this was a simple 2d artwork, there wouldn't be a big deal about it, but the fact this artist has the 3d model file for sale insinuates it could be used in a game by someone else at some point, and that is what Nintendo would like to avoid.
Fandom is scary and often depraved.
@Ryu_Niiyama This is a really unnecessary blanket condemnation. You don't have to condemn the rest of us this way to make your point, surely?
I think they took issue more with them selling it than its contents.
Subscribe Star and Fanbox exists, Akko will likely move there scot-free. This almost isn't newsworthy.
Why...........Just why. Why would they take the time to draw that? If they were drawing like a battle scene with Mario and bowser okay, but his dong? Just why.
@Slinkoy1 It happens sometimes
@Heavyarms55 take off that profile pic right now, you're stealing it.
fap fap fap fap fap fap
Nintendo must have some plans to sell something similar soon.
@COVIDberry Have you seen the internet? We have porno directors, armchair devs/writers/shareholders, thieves, and some folks act like cultists. There is no sense of moderation or detachment over products while most people either drift through life, insulated to others or are instead needlessly hostile. Humanity loves to crank everything up to 11 except being decent and good. So no I am not modifying what I said. You are more than welcome to not agree however. I am just one woman.
But attempting to chastise me to try to “convince” me to change my position is not going to work.
@Ryu_Niiyama I was somewhat sharper, perhaps, than I should have been in my initial comment. So, I apologize for that. I still feel you were being unfair. I'm happy to let the matter rest there, if you are.
As far as the fair use parody defence goes, it is exactly that, a defence to be used in court. Nintendo are perfectly within their rights to challenge it's use. The creator can then either choose to remove the content or contest the challenge in court. It's only there that the parody defence applies and it's the up to a judge to rule on that on the specific case. Clearly in this instance the creator is not going to have the means to go through litigation and it's easier for them to remove the content, which they have done. Whichever side you sympathise with here, from a legal viewpoint, both sides have to date done things within the law.
@COVIDberry Fine by me. Have a nice day!
@ImBackBB @Ambassador_Kong
The difference between something like super Hornio brothers and this, is presumably that this person is presenting these images (and making money from their creation and distribution) as an image of Bowser.
He's not passing it off as a Bowser knock-off, but as Bowser fully out of his shell.
Nintendo probably COULD go after Robot Chicken/Turner television, but that would probably be more trouble than it's worth...and Robot Chicken is pretty up front about being satire while still using the names and likenesses of other companies IP.
It probably would have helped this artist's cause if he had called his creation "Wowser" or altered the base design slightly - but the selling point for such a work is to capitalize on the popularity of the character.
"It's safe to say that this news piece is really going to stretch the boundaries of what is possible to talk about on a family-friendly website..."
I know you guys need the clicks, but Nintendo Life really could just NOT write about this stuff if you care about being family-friendly. Just a thought.
@ATaco Nope. I am not selling it or profiting off of it in any way. Which is the key point.
There's nothing wrong with fan art or even hobbyists taking commissions. But you can't make a business off of other people's work.
And even in this case, the artist gave permission for anyone to use this and others they made - so long as we don't claim them and shared the original post. Which I did.
Guess now would be a good time to mention that Klotzzilla/Shadowpelt/Carnival-Tricks (NSFW/ABDL artist) sells recolored Pokemon OCs for $30+. Typhlosions, Goodra, and Lucario last I checked.
Creating a Bowser Jr. model for artists of questionable content to play with is one thing. But making money off of it?
Yeah, I'd crack down on that one too.
@PBandSmelly Oh my sweet summer child. Bowser is relatively tame, as far as the internet is concerned.
@ImBackBB
But it actually really doesn’t. Legally speaking, you need to be meaningfully critiquing the original work with your satire/parody. If you go over old Mad and Cracked comics, you’ll find they shoehorned in a lot of criticisms if the property had anyone without a sense of humour attached to it. Things like porn parodies and erotic fan art just happen to be infinitely lower on the priority list than say full scale piracy operations. There’s also the fact that copyright law is mega convenient. The copyright holder can choose to let people infringe on their copyright if they don’t mind. 99% of the time, you’re not seeing “fair use”. You’re seeing the copyright holder not caring about it.
@robr
Well if that's the case then why did Nintendo have to buy out the rights to Super Hornio Brothers? I mean that wasn't critiquing the video games in anyway...
Like I said before I don't make the laws and concerning parody laws I guess they are murky and super lenient these days then they were in the 90's/2000's...
@ImBackBB
I'm no gambling man, but I wager that the rights to Super Hornio Brothers were signficantly less than their lawyers' retainer. :0
Lawsuits can drag on for years and the publicity would draw attention to it, so, if they did buy it out (which is, remember, only according to Ron Jeremy..and...Kotaku), it was probably the quickest way to nip it in the bud.
@robr
"it was probably the quickest way to nip it in the bud"
If that's the case (which it really isn't, it was so that it couldn't be distributed anymore like I said before, again...) they certainly failed on that.
@ImBackBB
I'm more curious about why the internet is filled with the question of whether or not it really existed until Something Awful got ahold of a DVD rip. It was seriously at every vhs rental store I had ever been to. In the meantime, I'm going to go down the google rabbet hole to learn about the legalities of porno parodies. I know I don't have the full picture.
Imagine being the type of guy who actually seeks out game-related hentai.
Yeah. Just imagine.
Well, anyway. That's all I wanted to say. I gotta get going.
leaves suspiciously
@robr
"I'm going to go down the google rabbet hole to learn about the legalities of porno parodies"
Well thankfully they're not going away anytime soon. People need to remember that we're not in the 20th century anymore. We need more artistic freedom not monopolising censorship.
@Andy_Witmyer
>Not seeking out game-related Bara
Such a scrub...
I didn't know Bowser even had a d@$%. No surprise they only showed this because of everyone's dirty minds. It's apparently criminal to them that they issued DMCA strikes but it's dirty to some that want to think of it as such, myself included, which is why I have a thing for Bowser.
@ImBackBB
Well, the good/bad news is; the very same court at some point provided contradictary opinions of the law. And, across the board; US courts have been contradictary on the matter. So, the precedent is there is no precedent (even though, there have been enough cases already).
Honestly, I've seen some crazy music publishing related civil cases where the verdict went the way of not at all logical in recent years, so I am not suprised. I've seen outright and provable theft thrown out of court. I've seen people win publishing royalties because two songs had the same sequence of two notes at a random point of the song. I've seen 100% of royalties given to a corpse over a style homage when the "infringing" piece of music was utterly not the same as far as any of the actual notes were concerned.
It starts to make more sense why I'd just buy out something I don't want people seeing.
@Heavyarms55 Nintendo are just being old farts again. Plenty of people make money off artwork, some NSFW and some not. Nintendo only chose to go after this artist because they think they can stop the bowser dong art from spreading. Otherwise they would copyright claim all artists that dare draw Nintendo art. Then again they have little soldiers like you that will gladly snitch them out due to some misguided loyalty where you guys always think Nintendo can do no wrong and Nintendo actually cares about you.
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