this post was submitted on 23 Jan 2024
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Not that this would save the average person from litigation hell, but does Nintendo actually have a legal leg to stand on? What would make a (free) mod any different from any other artistic expression?
Also assuming the mod creator didn't do anything crazy like rip assets from an existing Pokémon game.
Copyright law doesn't really care if its commercial/personal - just if its fair use. For reuse of characters, its an esspecially high bar. In this case, its reuse of characters as-is so that wouldn't be considered transformitive, and its obviously not criticism, so it wouldn't be allowed.
For a comparison, every Pokemon is under the same protection Mickey Mouse was a decade ago. Basically, unless you're directly criticizing the art or character its not technically fair use. Even gameplay footage is a grey area. Its just a matter of how litigious Nintendo wants to be.
Edit: minor correction, commercial/personal sort-of matters, but more in a "is it competing with or damaging to the original work" sort of way - something making money looks more official and suggests more effort and intent, for example.
Good explanation, thank you. It looks like fair use is a lot more limited than I had thought. And obviously not worth the risk for the average person to try and use as a defense.