What is the legal copyright/trademark status of Missingno ?
For those that do not know, Missingno is a glitch that you can encounter in Pokemon Red/Blue on Gameboy. It is not a Pokemon, nor did Nintendo intend to create it. However, you can encounter Missingno in battles and even catch it and use it just as you would use any other Pokemon.
Although Missingno has a cult following, up until today I don't think Nintendo has acknowledged it as a Pokemon. They just regard it as a glitch in the game..
Here is Nintendo's blanket copyright/trademark statement regarding all things Pokemon:
© 2018 Pokémon. © 1995–2018 Nintendo/Creatures Inc./GAME FREAK inc. Pokémon, Pokémon character names, Nintendo 3DS, Nintendo DS, Wii, Wii U, and Wiiware are trademarks of Nintendo.
Since Missingno is not regarded as a Pokemon or a character, but is simply passed off as a glitch, does that mean a regular guy like me could officially create Missingno via artwork and claim copyright ownership of it as my design?
I guess this is just one example, but this leads to a bigger question. Can developers claim Intellectual property rights over things that result from glitches in their games that they did not intend to design and may possibly not even be aware of?
Although Missingno has a cult following, up until today I don't think Nintendo has acknowledged it as a Pokemon. They just regard it as a glitch in the game..
Here is Nintendo's blanket copyright/trademark statement regarding all things Pokemon:
© 2018 Pokémon. © 1995–2018 Nintendo/Creatures Inc./GAME FREAK inc. Pokémon, Pokémon character names, Nintendo 3DS, Nintendo DS, Wii, Wii U, and Wiiware are trademarks of Nintendo.
Since Missingno is not regarded as a Pokemon or a character, but is simply passed off as a glitch, does that mean a regular guy like me could officially create Missingno via artwork and claim copyright ownership of it as my design?
I guess this is just one example, but this leads to a bigger question. Can developers claim Intellectual property rights over things that result from glitches in their games that they did not intend to design and may possibly not even be aware of?
Comments
Even if they don't have explicit ownership of it (as a glitch)...it seems unlikely someone else could claim any kind of ownership later, as it probably still counts as prior art of some sort.
Yeah, they still own all the code...Glitch or not it's still part of that code.
I don't think anyone has anything on here.
Sorry. Kharacter.
Originally posted by: DarkTone
Didn't this happen in Mortal Kombat? Can't remember which character.
Sorry. Kharacter.
Ermac
Since Missingno is not regarded as a Pokemon or a character, but is simply passed off as a glitch, does that mean a regular guy like me could officially create Missingno via artwork and claim copyright ownership of it as my design?
It's still considerd part of the context of the overall Pokemon game. You could make derivative works (such as parodies) based on it, but if you straight up tried to sell artwork of MissingNo in the context of "Pokemon" in any way, you might get a nice little Cease and Desist from Nintendo.
I recall a similar case where someone tried to argue that a photographer didn't own the copyright to his awesome ape/monkey selfie photograph because it was actually taken by the animal. Yeah, but the photographer set it up, whether intentional or not, and exclusively controlled access to it before it was released. IIRC, he won, but don't take my word for it (should be easy to look it up).
https://en.m.wikipedia.org/wiki/Monkey_selfie_copyright_dispute
On 21 August 2014 the United States Copyright Office published an opinion, later included in the Office's Compendium of U.S. Copyright Office Practices, Third Edition, released on 22 December 2014, to clarify that "only works created by a human can be copyrighted under United States law, which excludes photographs and artwork created by animals or by machines without human intervention" and that "Because copyright law is limited to 'original intellectual conceptions of the author,' the [copyright] office will refuse to register a claim if it determines that a human being did not create the work. The Office will not register works produced by nature, animals, or plants."[27][28] The compendium specifically highlights "a photograph taken by a monkey" as an example of something that cannot be copyrighted.[29]
In the case of the monkey, the photographer was intentionally optimizing the situation with the specific goal of encouraging the monkey to take the picture.
Whereas Missingno is just a random chance glitch that Nintendo did not intend to create. They were not even aware of its existence until after the fans brought attention to it. Also it seems that they even disclaim ownership of it.
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There's a Kotaku article about Missingno that says:
What Does Nintendo Say About Missingno?
To quote:
MissingNO is a programming quirk, and not a real part of the game. When you get this, your game can perform strangely, and the graphics will often become scrambled. The MissingNO Pokémon is most often found after you perform the Fight Safari Zone Pokémon trick.
To fix the scrambled graphics, try releasing the MissingNo Pokémon. If the problem persists, the only solution is to re-start your game. This means erasing your current game and starting a brand new one.
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A fan even commented in this article stating:
"It may be worth mentioning that back in the days of old, when you called the Game Freak hotline (I think it was there for tips and tricks?) the first thing the automated message said was:
"There is NO missingno."
Which of course made it 10x more ominous and awesome.."
In the case of the monkey, the photographer was intentionally optimizing the situation with the specific goal of encouraging the monkey to take the picture.
Whereas Missingno is just a random chance glitch that Nintendo did not intend to create. They were not even aware of its existence until after the fans brought attention to it. Also it seems that they even disclaim ownership of it.
Nintendo may or may not have intended to create it, but a human working in their employ still created the code that generates it.
But good news for you, this is what courts are for! Go ahead and use MissingNo in a commercial setting and claim it as your own, wait for Nintendo's inevitable legal challenge, and take your argument to a copyright judge. I'm VERY interested in the decision that will come of this.
In the case of the monkey, the photographer was intentionally optimizing the situation with the specific goal of encouraging the monkey to take the picture.
Whereas Missingno is just a random chance glitch that Nintendo did not intend to create. They were not even aware of its existence until after the fans brought attention to it. Also it seems that they even disclaim ownership of it.
Nintendo may or may not have intended to create it, but a human working in their employ still created the code that generates it.
But good news for you, this is what courts are for! Go ahead and use MissingNo in a commercial setting and claim it as your own, wait for Nintendo's inevitable legal challenge, and take your argument to a copyright judge. I'm VERY interested in the decision that will come of this.
There is a glitch in Super Mario World SNES in which you can actually gain access to unused ram an edit values by performing in game actions. Exploiting this glitch, a programmer was able to inject code that executed a game of "Flappy Bird" within Super Mario World. https://www.geek.com/games/flappy-bird-game-injected-into-super-mario-world-on-un-modded-snes-1650912/
This was all done solely based off of Nintendo's source code, utilizing a known glitch.
Based on this logic, does it mean that: Since it is possible for Flappy Bird to come into existence solely using Nintendo's code, Flappy Bird is Nintendo's intellectual property??
There is a glitch in Super Mario World SNES in which you can actually gain access to unused ram an edit values by performing in game actions. Exploiting this glitch, a programmer was able to inject code that executed a game of "Flappy Bird" within Super Mario World. https://www.geek.com/games/flappy...
This was all done solely based off of Nintendo's source code, utilizing a known glitch.
Based on this logic, does it mean that: Since it is possible for Flappy Bird to come into existence solely using Nintendo's code, Flappy Bird is Nintendo's intellectual property??
No, because you just said they injected their own Flappy Bird code in to the existing code. This is apples and oranges.
There is a glitch in Super Mario World SNES in which you can actually gain access to unused ram an edit values by performing in game actions. Exploiting this glitch, a programmer was able to inject code that executed a game of "Flappy Bird" within Super Mario World. https://www.geek.com/games/flappy...
This was all done solely based off of Nintendo's source code, utilizing a known glitch.
Based on this logic, does it mean that: Since it is possible for Flappy Bird to come into existence solely using Nintendo's code, Flappy Bird is Nintendo's intellectual property??
You're injecting your own code, not claiming the glitch that allows you to do that as your own.
No, because you just said they injected their own Flappy Bird code in to the existing code. This is apples and oranges.
Please don’t think that I’m intending to argue with you guys, I’m just hoping to enhance this conversation. The implications here are very interesting.
I think there’s a point to be made that Missingno doesn’t actually exist in the Pokemon games code. For Missingno to appear, it actually requires for the gamer to exploit a glitch which allows the gamer to inject bytes into a certain memory slot in a way that it wasn’t intended to be used. There’s a more technical explanation of the process here:
https://m.youtube.com/watch?v=8PILbqZqaS4
This is just my opinion, but I would say that executing an instance of Missingno is technically no different than executing an instance of Flappy Bird from a hardware/software perspective. They only differ in how many bytes need to be altered.
I would love love for someone with a professional hardware engineering background to join this conversation
This is just my opinion, but I would say that executing an instance of Missingno is technically no different than executing an instance of Flappy Bird from a hardware/software perspective. They only differ in how many bytes need to be altered.
I would love love for someone with a professional hardware engineering background to join this conversation
The "flappy bird" in SMW is actually "flappy Mario." All the assets used still belong to Nintendo, so trying to claim that as your own wouldn't pass the sniff test, either.
Basically both instances fall under derivative works. Something new created by existing IP. That doesn't automatically protect you from an infringement suit. There isn't a "nyah nyah, you can't sue me if I do this!" clause in copyright law, really. These are all defenses, i.e., what you're going to tell a judge that you're allowed to do this.
Originally posted by: DarkTone
Didn't this happen in Mortal Kombat? Can't remember which character.
Sorry. Kharacter.
Ermac
Ermac was a rumor that turned into a character. It came from abbreviating "Error Macro". Completely different than Missing No.
Originally posted by: dra600n
Originally posted by: Trj22487
Originally posted by: DarkTone
Didn't this happen in Mortal Kombat? Can't remember which character.
Sorry. Kharacter.
Ermac
Ermac was a rumor that turned into a character. It came from abbreviating "Error Macro". Completely different than Missing No.
Yeah, you are correct about that. Missingno was already there before there was a rumor about it being there.
That Wikipedia link says:
On 21 August 2014 the United States Copyright Office published an opinion, later included in the Office's Compendium of U.S. Copyright Office Practices, Third Edition, released on 22 December 2014, to clarify that "only works created by a human can be copyrighted under United States law, which excludes photographs and artwork created by animals or by machines without human intervention" and that "Because copyright law is limited to 'original intellectual conceptions of the author,' the [copyright] office will refuse to register a claim if it determines that a human being did not create the work. The Office will not register works produced by nature, animals, or plants."[27][28] The compendium specifically highlights "a photograph taken by a monkey" as an example of something that cannot be copyrighted.[29]
In the case of the monkey, the photographer was intentionally optimizing the situation with the specific goal of encouraging the monkey to take the picture.
Yes. That's why you could say that he arguably created the picture, just like a photographer who sets up his equipment to be triggered by lightning to catch awesome shots of an electrical storm or an engineer who programs a space radio telescope to automatically document a certain segment of the sky when seonsors on the ground detect a gamma ray burst. Some would say that curation is an act of creation when the curator exclusively controls access. The simple act of selecting which pictures to destroy and which to share is executing creative control, and there were hundreds of pictures the monkeys triggered that weren't quite "selfies" which we never got to see. Though the law was clarified a bit in respect to animal-created art, it was done in a way that it would still require a court decision for cases like this (unfortunately). They have to decide whether his efforts were crucial in creating the image (I feel they were).