Like many fan games, the development of Super Mario 64 Online started with mutual love for a franchise.

Kaze Emanuar, a prominent ROM hacker based in Argentina, was approached by the streamer and fan-game developer known as MellonSpeedruns, who prefers not to share his real name. A Mario fan since he was five years old, Mellon found the multiplayer offered in titles like Super Mario Galaxy lacking and wanted to create a true multiplayer experience for open-world Mario fans. 

“I tried doing some prototypes in Unity, but [they weren’t] successful,” Mellon says. “After a while, I remembered that the SM64 modding community was strong, and that I could do way more with that game. I then decided to contact Kaze and show him a prototype of an online version of Mario 64 I made with signs.”

The fan-made creation attracted attention online through videos showing Emanuar and other beta testers playing together. Soon, the game garnered a following and saw a generally positive early build launch. Emanuar, Mellon, and the other fans were eager to keep building on the project. 

Shortly after Super Mario 64 Online’s release, however, Nintendo hit Emanuar with multiple copyright strikes. YouTube videos that linked to instructions on how to access the fan game were taken down, and Patreon closed his crowdfunding page after the company received a copyright claim from the Japanese game publisher.

“I'm dead,” Emanuar wrote in a Twitter post on September 19. “Nintendo just took 20 of my videos and my Patreon down. Nintendo Creator program is not available in my country :(”

Emanuar’s situation is a regular risk of fan-game development, one of the more perilous methods of displaying an appreciation for a specific video game or series. Sometimes spanning years of multiple people’s lives, fan games are regularly lost in an instant due to copyright law violation, many times leaving their creators with nothing to show for their effort in the end. Despite this, fan games continue to be made year after year, with creators knowing full well the penalties they can incur are as major as the benefits the projects can bring.

Fan or Filcher?
While every medium has fan-made creations, fan games require far more time to create, many times shifting what would be the work load of several dozen developers onto a few passionate fans with no direct funding for the project. Mods, which alter or improve a game with fan made codes or additions, are similar in this regard, but are smaller in scale compared to recreating a game from the ground up.

To cut down on this burden, many fans turn to ROM hacks of games available online, which provide the original code and data from a game to be used for the new creation. However, this practice presents several legal issues. Whether hacking an original ROM to modify a game or re-writing a title from scratch, fan games are released independently and without the consent of the original game or series’ creator while retaining its name, characters, designs, or other recognizable features. As such, these projects are frequently deemed a violation of copyright and trademark laws, which puts the creators in danger of legal action on the part of the IP’s owners. In addition, U.S. copyright law requires IP holders to actively move to shut down infringements on their properties or run the risk of losing their ownership. 

Nintendo, the creator of several popular franchises with dedicated fan bases, regularly sees itself in this position. Since August 2016 alone, three high-profile fan games have spawned from properties Nintendo owns: Pokémon Uranium, Another Metroid 2 Remake, and Super Mario 64 Online. Each gained large fan followings and attracted attention from major news outlets.

While Nintendo’s Creator program has allowed for content creators in countries throughout North America, South America, and the Caribbean region to profit from video content related to their games in recent years, fan-made games overstep the limits of the program through the use of their copyrighted assets. This forces Nintendo to file copyright claims in order to hold onto their creation, as was the case with Emanuar’s videos.

We reached out to Nintendo of America for comment, but it did not provide one. However, in a recent statement given to Polygon following the takedown of Emanuar’s YouTube videos and Patreon, the company stated the following:

“Nintendo’s broad library of characters, products, and brands are enjoyed by people around the world, and we appreciate the passion of our fans. But just as Nintendo respects the intellectual property rights of others, we must also protect our own characters, trademarks and other content.”

The consequences of copyright infringement can be far-reaching. While Emanuar says his Patreon’s donations were made independent of Super Mario 64 Online, it was hit with a copyright claim by Nintendo for funding YouTube content, which included access links to the fan game. As such, Patreon took down the page and halted any further donations, forcing Emanuar to start up another page and regain contributors from scratch.

A Fleeting Frontier
More often than not, fan games are wiped out completely by copyright takedown orders, leaving creators with either bits and pieces of years long endeavors or nothing at all. The most recent example of this is Pokémon Uranium. A highly anticipated, fan-made project nine years in the making, Uranium was started with the intent of carrying the Pokémon series into more mature territory with darker themes like death and nuclear horror. New Pokémon were created for the entry to use alongside fan favorites, and the team hoped to build on the project long after release.

“Pokémon is very much a franchise that revolves around children,” says Cody Spielvogel, the current community manager of Pokémon Uranium. “I think the freedom and the ability to flip the script, and provide something that people don’t expect from the regular franchise, is what draws people to [Uranium].” 

But shortly after release in 2016, the game and its developers were hit fast and hard with takedown orders by Nintendo. Videos and sites with download links to the game received copyright claims or were taken down, and the original development team left Uranium completely to avoid further legal penalties, leaving the project’s fans and supporters with an unfinished dream.

In the year since, Spielvogel and other fans have pieced the project back together, mirroring and altering the game enough to avoid more takedown orders. The current lead developer Unknown Entity, who prefers not to share his real name, reverse engineered some of the game’s code to provide patches for bugs and is currently trying to finish unreleased content with the original developers’ blessing. Though the project could be taken down again at any time, he continues the work largely for the fans.

“I’m really still here because no one else will do this,” he says.

Spielvogel also sticks around because of the fans who continue to support the project and the motivations behind it.

“None of us came into where we are now with the sole intention of hurting Nintendo or affecting sales or bringing malice to the company in any way,” he says. “We did it because we love the franchise and we love that people are taking these creative strides to make a world of their own.” 

Labors Of Love 
While most don’t have happy endings, some fan games do prove fruitful for their creators, as is the case with the Half-Life remake Black Mesa. 

Designed by a group of fans in their spare time, the project aimed to give the same polish and updates to the original Half-Life that was found in Half-Life 2. The team has put years of effort into capturing the feel and spontaneity of the gameplay while also updating portions that have aged poorly. 

To increase the project's exposure the team applied Black Mesa to Steam Greenlight. Even though the team was operating as a non-profit, the move offered the chance for gaining support from Valve if the Steam community voted for it as worthy of a full-scale release. 

“Getting [Black Mesa] on Steam was never about selling it as a retail product,” Black Mesa story lead Ben Truman said in an interview with Game Informer in 2014.  “We would just make the mod free for download from the Steam library. So when Steam Greenlight popped up, we just thought, ‘Why not? Let’s go for it.”

Through the exposure Greenlight provided them, the Black Mesa team found not only the support of the fan base, but also the backing of Valve, who later allowed the team to monetize the project. A playable build of Black Mesa was released in early access in 2015, with a full release still in development.

A Test Of Skill
Others have been able to use their fan made creations as a means of testing their skills and learning more about game development. Such was the case for Milton Guasti, the creator of Another Metroid 2 Remake. Guasti began his project as a means of testing his programming and developing skills. Having played Metroid Fusion and Metroid: Zero Mission, he wanted to apply the same updated visual style of the Gameboy Advance games to the Game Boy title Metroid 2. By designing a remake, he could use the existing assets of the handheld games available through online ROMs as a starting point.

“Remaking [games] lets you focus on the stuff you need to do research on,” Guasti says. “I didn’t need to waste time figuring out what the world was going to be, it was just working the overall layout and master levels and the overall game design, and so my focus was just learning how to properly program and scripting.”

Choosing a remake also made for a humbling learning experience. As Guasti got started on AM2R, he quickly discovered how much work and effort went into the design for the many parts of the game.

“I wasn’t aware of what I was getting into,” he said. “Samus wound up being way too complex to rip properly; way too many animations and frames and combinations of different actions, and everything is different either facing right or left.”

With the support of the game’s fan base, Guasti pushed through these obstacles and launched the game in 2016. AM2R received a positive reception from fans and press alike, but it was taken down by Nintendo a month later. Unbeknownst to Guasti, the company was working on its own remake of the game, Metroid: Return of Samus, which it revealed during E3 2017 and released this past September.

In addition to the development experience and positive reputation gained from his project, Guasti captured the attention of Moon Studios. After actively seeking out his contact info through forums, the company’s CEO urged him to apply to work on its upcoming sequel to Ori and the Blind Forest, a game overflowing with inspiration from Metroid. 

“Like any other applicant, I had to go through a fairly rigorous test to see if I was actually able to join the team, and the entire team is made up of insanely talented people, so I had to be up to very high standards,” Guasti says. “I was able to get through it and here I am, working on Ori and the Will of the Wisps.”

Looking back on the experience of developing AM2R, he finds it largely positive.

“The main objective of this project was to learn, to do something with my free time and to be a better programmer,” Guasti says. “Using assets from existing games cut down quite a lot of work and made it actually possible.”

Walking The Fine Line
Though the risk of losing everything they made at the blink of an eye remains, the fan-game community shows no signs of disappearing, and companies continue to search for legal ways fans can add to and create from the properties they love. Nintendo’s Mario Maker on Wii U saw over 7 million user created levels as of May 2016, racking up 600 million play counts, and a port for the Nintendo Switch has frequently been requested by fans since the console’s release. Likewise, Bethesda’s creation clubs for The Elder Scrolls V: Skyrim and Fallout 4 allow players to create content for the game within certain parameters, even allowing fans to make money off of these creations.

Emanuar continues work on Super Mario 64 Online following the release of Super Mario Odyssey. The project is still accessible to players and hasn’t yet received a cease and desist order. With the recent launch of Odyssey, he hopes his videos will attract less attention. If and when another copyright claim comes from Nintendo, however, he will consider the project dead.

“I just hope we can gain some of the traction back,” Emanuar says. 

Meanwhile, the new Uranium team continues their work to complete the game. Though they’ve been able to keep the project up through mirrored versions, they are aware of the constant risk of losing everything via DMCA takedown orders.

“It’s always in the back of your mind,” Spielvogel says. “Every day that goes by could be the last, and I’d like to think that we would do something, but at this point in time, we don’t have a game plan.”

Be sure to check out Cody Mello-Klein's coverage of photo modes and the community around them, as well as Ben Reeves' comparison of AM2R against the original Metroid 2 and it's recent 3DS remake.