In the wake of a new lawsuit filed by Nintendo against two big ROM websites, hopefully you will believe your friendly neighborhood video game attorneys when they tell you that ROMs and using someone else’s IP without permission is infringement.
I can’t tell you how many times we hear that, “I’m creating a new game based on an old game but I’m not making money, so its okay right?” The answer is no, always no. While we can tell you that over and over again, Nintendo is actually going to make you listen.
A couple of weeks ago, Nintendo filed a copyright infringement lawsuit again Jacob Mathias and his studio Mathias Designs LLC. **First Lesson: having an LLC does not prevent the owners and those contributing to the infringement from personally being sued for copyright infringement.** Mathias ran two websites, LoveROMs and LoveRETRO that were popular websites that let users play old Nintendo console games. Such games included Super Mario World, Mario Kart 64, Super Mario Bros. 3, and Super Mario All-Stars. Yes, we all wish we had a console to still play these games but illicit websites cannot just let people play them without authorization from the copyright owner, Nintendo. This is classic infringement, there is no defense to this, at all. The only thing to fight is the amount of damages the infringer is going to have to pay to get out of this mess.
Nintendo claims a whopping 140 titles were the victims of copyright infringement and 40 trademarks were infringed as well. **Lesson Two: copyright infringement and trademark infringement are different and infringement of both can lead to damages.** The maximum statutory damages award for copyright infringement is $150,000 per work and for trademark counterfeiting is $2 million per mark. So do the math, Mathias is looking at a possible $100 million judgment….oh plus attorneys’ fees and everyone knows how those jokers bill like crazy.
Game devs this should teach you a lesson. Don’t use other people’s IP without permission. Yell fair use all you want but this is not fair use, it is just copying someone else’s work. It doesn’t matter if you aren’t making money on the project or had “no intent” behind the infringement, its still infringement. Further, these companies don’t have to give you a warning, they can file a lawsuit against you at anytime. You don’t want to be the next person on the chopping block with a $100 million judgment hanging over you.
So in sum, be careful out there and if you are doing something without permission, knock it off!