I have nothing against dedicated fans wanting to make films deriving from a movie or video game. In some cases, the original work gets a PR boost, and it’s hard to argue with free advertising that attracts more fans. However, when the IP holder hasn’t set a clear precedent for fan-created works, that’s when the problem starts.
Fan films, as derivate works, usually make use of trademarked names and characters. For instance, a quick hop over to Nintendo of America’s page for the most recent Legend of Zelda™ game, Spirit Tracks, shows that Nintendo makes a trademark claim for not only the name The Legend of Zelda, but also for the name and character Link™. So a fan film like The Hero of Time would likely make use of Nintendo’s IP, namely characters covered under trademark.
Some companies are known to be lax in their enforcement of trademarks; for instance, IP holders of the Star Wars and Star Trek franchises, as pointed out in the Slashdot story, tend to permit not-for-profit fan films. But this is not the norm, and most IP holders tend to guard their trademarks closely, so that they can maintain full control over their image.
Why would a company not want their fans to cook up some free derivative works?
- Quality: It’s unlikely that fans would pour enough money into a fan film to reach the standards of quality that the IP holder would be satisfied with. The chance of a film with a $1,000 budget looking like a $20m Hollywood-style production is almost nil.
- Content: The IP holder might object to the content for various reasons. Nintendo could easily make the argument that a fan film could be “too” adult, e.g. due to violence. The storyline and plot might conflict with the actual games or movies and blur the line between what’s the “true” story and the “fan” story. (This is a particular issue with fan fiction.)
- Bad PR: If a fan film ticks off the fan base, the original work could suffer. Someone mentions The Legend of Zelda and the first thing that comes to mind is “that crappy fan film” doesn’t do the original work any favours.
It’s hard to feel bad for the group that put together The Hero of Time. They clearly went along without an explicit blessing from Nintendo and spent years (and an unknown amount of money) producing a film and showing it in theaters.
Fans make the argument that the film’s creators did nothing illegal. It is illegal in that the registrant can, under the Trademark Act of 1946, seek civil action against any person infringing a trademark. They make the argument that the film is free advertising. Free advertising != good advertising. They also argue that the film was “not for profit” and should be protected. 15 U.S.C. Sec 1114 does not exempt these so-called “not for profit” projects, as merely distribution can be grounds for infringement. (The same principle holds for the use of P2P to distribute movies, music, etc.)
Since Nintendo only uses the standard trademark symbol and not the registered (®) trademark symbol, it’s reasonable to assume that the marks are not registered. If this is in fact the case, the producers of the fan film could’ve fought the claim, but I doubt they would’ve had the funds and the counsel to do so, not to mention the negative press they would’ve received.
This is the problem with fan films. Fans dive into projects like these without respect (unintended) for the creators of the works they know and love. It’s unfortunate for those who spend a considerable amount of time and money, but content holders do have the right to protect their work, which sometimes means protecting it from fan films.
