Pixels And Polygons' Once-Cancelled Beat 'Em Up Book Is Now Available To Buy, With A Slightly Different Name

"Hupke did not specifically name who exactly sent him this message"
So it was Nintendo, then?

More seriously, is a book like this actually infringing on anyone's property? There are plenty of books about games, TV shows, etc., which mention the trademarked names and even show the occasional screenshot, and these have existed for decades without issue. But several of these books have just recently been stifled, censored, and/or threatened with legal action.
Is this kind of book a grey area without much legal precedent (or even technically illegal, but rarely seriously pursued by the rights holders until now), or are companies just throwing their weight around with no real backing or justification besides "I have more money and better lawyers than you"?

@smoreon

Hopefully, he's verified that whoever sent him the letter actually is the party that owns the rights (because griefer trolls will troll). But to answer your question, generally, it should be possible to write a book about a series of games because fair use is a thing. The key is ensuring you stay on the right side of fair use and that requires paying an IP lawyer with fair use experience to review everything. That's expensive and, at the end of the day, your lawyer's belief that you're not infringing won't stop a rights holder from suing you.

It may not even be that the rights holder is intentionally being mean. A lot of companies have lawyers on retainer and those lawyers run regular automated searches on trademarks their client owns. If they get any hits, by default they advise their client that the client should pay them to send a letter to notify the other party that they own the trademark and have the right to enforce it. Sending a bunch of these letters helps the law firm use up the client's retainer (basically an advance deposit). The firm will also warn the client that not defending their trademarks can potentially lead to weakening or nullifying the trademark. While technically correct, it probably wouldn't apply in a lot of situations but billable hours are billable hours and template letters are easy money.

Ultimately, if you're collecting money for anything that incorporates more than a tiny smidge some big company's trademarked IP, you're going to have legal exposure if they choose to sue. You may win in court but it'll cost well over $100K and take a few years (at best). Many people wonder "Why wouldn't a company just ask for a percentage royalty and make a little money if it sells well?" Sadly, there are a bunch of reasons that mostly fall under the heading of "Why big companies can't afford to do little things." If they grant a license to a hobby project, they can be named as a co-defendant if the project infringes some other company's rights. That means they need to review all the content and approve it, costing lawyer money and taking product manager time. Reviewing and approving it would also create even more potential liability, so it's a never-ending circle. There's also the ever-present concerns about the hobby project not living up to the brand's quality standards. Basically, the way the law works combined with what it costs any big business to just "do something" means it's either "All in " or "All out", and any form of "All in" takes a lot of time and money - so it has to be able to make a lot of money - or it's just not worth doing.

And this is why nice people usually can't make fun little side projects around a big company's IP and just charge enough to cover their costs plus some coffee money.

@markran Thanks for the detailed response!

It's frustrating how the current system is stacked so heavily in favour of both the "big guy" as well as... let's say the "aggressor" in general, as- like you touched on- it's not necessarily the actual rights holder, but potentially an overzealous legal team or even an outright troll. If they so much as growl, it's often deemed safest to just give in, even if they really don't have much of a case on their hands.

And yeah, it's a fair point to distinguish between the actual rights holder and their lawyers who advocate for them (and who are incentivized to be aggressive). Though when a company like Nintendo (just as the most infamous example) is so widely known to have consistently overzealous lawyers, they should be able to rein them in a bit to save their reputation- and a bit of money as well!

About the fair use angle, I wonder if the focus on a single franchise weakens that a bit. Not that this explains every recent case of legal threats against these books, but a Final Fight book might be riskier than, say, a general look at '80s arcade games, or 2D beat-em-ups.

@smoreon

> a Final Fight book might be riskier than, say, a general look at '80s arcade games, or 2D beat-em-ups.

The risk always depends most on how aggressive and/or unreasonable a rights holder chooses to be. A hyper-aggressive litigant with literally zero grounds to sue can still require tens of thousands of dollars and many months to get dismissed if they choose to be maximally obstructive. A legit company in the business of monetizing their IP hopefully won't be quite that bad - but they may not be too far behind given their business focus.

However, a book specifically on their trademark does have the possibility of additional complication from arguably "trading on the name brand" vs just mentioning the brand. If the "Final Fight" logo and game artwork is featured prominently on the cover, it makes it easy for them to claim "the book used our trademark to sell itself".

Of course, the doesn't mean the fair use safe harbor doesn't apply but it does make it more complicated and that increases risk. That's why some books go out of their way not to use trademarked names, logos or artwork on the cover. Like a book that could have been called "Inside Disney" instead being called "Inside the House of Mouse" or similar.

Considering the amount of books written on specific games I'm not sure why he's being singled out. I don't think whoever is stopping him has a leg to stand on.