Earlier this week I had a chance to speak with Agustin Flowalistik, a designer who is also a great Pokemon fan and has been designing the creatures and releasing low polygon 3D models to download for free under a Creative Commons license. Agustin is – like the entire toy and merchandising industry should be – concerned about what Nintendo may think about creating objects based on its most valuable intellectual property (IP) so he contacted them, without really expecting an answer.
Knowing Nintendo and how traditional the company generally is in its policies, we both doubted the company would reply. Instead it did, showing it is fully aware of what it is going on and mentioning 3D printing specifically which, as far as I know, is the first time that Nintendo has made any statement about the technology directly.
In its answer Nintendo make two very important points for the future of property right management for solid objects at a consumer entertainment level. One thing the company immediately wanted to make very clear is that it receives so many requests to sell products based on its properties that it simply cannot answer them all and thus declines all of them.
“We receive thousands of requests and do not have adequate staffing to review them all”, said the company in its official reply. “Therefore, our general policy is to decline all such requests, no exceptions. To be clear, this means we do not grant permission to sell drawings or 3D printed items featuring our trademarked characters. I realize this isn’t what you wanted to hear and thank you for understanding.”
Although the polite style masks a categorical “no”, the company points out there are some possibilities for creative fans. This will, however, be a matter for lawyers: “Although we are unable to grant permission, use of Nintendo properties without our formal permission may still be allowed depending on the circumstances. You are encouraged to seek your own legal counsel (such as a lawyer) if you have any questions about whether your particular proposed use is permitted without Nintendo’s authorization. This is not a comment on whether we believe your particular proposed use is permissible—Nintendo cannot provide legal advice.”
The bottom line here – if you are a designer that wants to make Nintendo inspired products – is that Nintendo implies it will be fine to go right ahead and that, if they don’t feel the use made with its properties is legally acceptable, you will receive a visit from their lawyers… likely an entire army of them. So you might as well consult your own lawyer or legal advisor before doing anything for profit.
Some more information can be found on Nintendo’s official website, but, if you are thinking of making your own Pokemons, or SuperMario or Pickachu or Doneky Kong characters, you better be – to borrow a trademark from another huge IP company – “vewy vewy careful”.
