Nintendo of America, Inc. has issued a DMCA takedown for a documentary uploaded to YouTube… but why? 🧐
Back in October 2022, the YouTube channel Did You Know Gaming uploaded a documentary exploring the lost history of a Nintendo game that was never made. Video game studio Retro Studios submitted a pitch to Nintendo nearly 20 years ago for a Legend of Zelda spin-off called ‘Heroes of Hyrule’, but the project was never accepted and didn’t move forward. Did You Know Gaming’s video included research behind what the game would have been… so why did this get taken down?
❓ Why is this not considered a fair use to a copyright infringement claim, which is essentially what’s being claimed by the filing of a DMCA takedown request with YouTube?
Documentaries can sometimes rely on fair use as a defense to not having obtained a license for a copyrighted work. I’d add that this particular instance involved a documentary that is based solely on a single video game pitch, which was ultimately scrapped, and that has historical significance/interest. It seems like a perfect candidate for a fair use defense. Check out this article from Cowan, DeBaets, Abrahams & Sheppard LLP covering a 2012 decision in a documentary film Copyright fair use case, National Center For Jewish Film v. Riverside Films, LLC (C.D. Cal. Sept. 14, 2012).
❓ Is the issue that this is possibly an unpublished work, or maybe unauthorized derivative (since the project pitch wasn’t accepted)? Perhaps characters?
❓Does DMCA even apply? If there’s no copyrighted work, and there’s no registration, then under what basis was the DMCA takedown even issued?
Very curious about this copyright issue!
Note also that Nintendo issued a DMCA takedown notice, so it isn’t based on trademark infringement or some other cause of action.