Nintendo, being one of the giants in the gaming industry, commands an estimated 59.56% of the gaming industry. Given the popularity of various Nintendo titles worldwide, Nintendo takes various measures in order to protect its intellectual property and is no stranger to filing copyright claims against any content that depicts it in a light that it deems unfavourable. In fact, Nintendo is notorious for such infringement claims and their legal department is quite infamous in the content creation space.
On November 29, 2018, Nintendo released Content Guidelines for Online Video & Image Sharing Platforms (“Content Guidelines”) for streamers and content creators that broadcast their games online. The Content Guidelines have undergone various updates and revisions since 2018 and, Nintendo has recently updated the said guidelines on 2 September 2024 (please see here), stressing that Nintendo reserves the right to no longer allow the use of Nintendo game content in case of any violations.
The Content Guidelines:
As per The Content Guidelines-
• Only Nintendo game content that features creative input and commentary is permitted to be uploaded and/ or livestreamed. Therefore, while game reviews and ‘lets play’ content is acceptable, uploading or livestreaming an existing Nintendo video/ gameplay footage without any creative or editorial input, is prohibited;
• Monetising any Nintendo content (whether by way of uploads or livestreaming) is only permitted through the monetisation methods specified by Nintendo. The said monetising methods have been clarified by Nintendo in their ‘Frequently Asked Questions’ section of the Content Guidelines (“FAQs”) at FAQ. A4;
• Nintendo game content may only be used once the game has officially released or, if the content is generated from promotional materials official released by Nintendo (such as game trailers or from the ‘Nintendo Direct’ events).
• Nintendo now reserves the right to object to any content that it believes is “unlawful, infringing or inappropriate”, or content that is not in line with the Content Guidelines. Nintendo has clarified that it shall no longer permit the use of Nintendo game content in case of any such violations.
At FAQ. A11 of the FAQs, Nintendo has listed various examples of content it deems “unlawful, infringing or inappropriate”. A couple of such examples include any content that “Shows how to use software and/or devices that circumvent security measures deployed by Nintendo to protect against infringement of its video games and console systems, such as emulators and/or other circumvention software” and content that “features unauthorized game consoles and/or software not licensed by Nintendo”, which both appear to be in furtherance of their successful lawsuit against Tropic Haze LLC for their ‘Yuzu’ emulator (please see this explained here).
Further, any content extracted through software via data mining methods is also now prohibited. This means creators won’t be able to stream or post content about any data mined Nintendo intellectual property, as Nintendo will have the right to file infringement claims against such content.
While it remains to be seen if the updated Content Guidelines will impact the availability of Nintendo title play throughs on streaming websites, smaller ‘Youtube’ creators may actually benefit from such revisions to the Content Guidelines as they will now be permitted to post Nintendo content on Youtube without officially joining the ‘Nintendo Partner Program’, which Nintendo intends to shut down next month. Content creators may now freely monetize Nintendo game content as long as the content is consistent with the strict Content Guidelines.
As game leaks (whether information or gameplay) often originates from data mining, spreading of game secrets or unannounced information through unofficial channels, the updated Content Guidelines suggest that Nintendo is taking active steps and are ramping up their efforts to tackle major leaks in the gaming industry and to defend their intellectual property.
Content creators will now be required to adjust their activities and align their content to adhere to the Nintendo Content Guidelines in order to avoid any future issues with Nintendo if they’re interested in capturing gameplay for their own creative and editorial purposes.
Author: Aneesh Tendolkar