Over the years we’ve published thousands of articles on copyright law, from how it works in theory to its application in full-blown lawsuits.
In most cases involving pirate sites, for example, the unlicensed distribution of movies, TV shows, music and games is easily determined. But other copyright disputes, where infringement is not so obvious, can trigger new complexity and polarized legal opinions. We might have one of those today.
Background – Nintendo’s Unreleased ‘Mario Movie’
In 2018, Nintendo announced a collaboration with film and animation studio Illumination (Minions, Despicable Me) to produce a new ‘Mario’ movie. Production got underway in 2020 and a theatrical release was expected in late 2022.
An announcement this week by Mario creator Shigeru Miyamoto revealed that the movie will now launch next spring, not in 2022 as expected. The few extra months will give fans even more time to speculate on how the film will play out. And herein lies the problem.
Rumors relating to the as-yet-unnamed ‘Mario Movie’ are rife on Twitter, Facebook, YouTube, and other platforms, but how does one even begin to separate fact from fiction in these numerous reports? The obvious fakes are pretty easy to spot but there is no simple way to steer towards more truthful information – until someone draws unusual attention to it, that is.
Just Another Mario Rumor Post or Something More?
A couple of weeks ago a Reddit user posted a thread titled [Spoilers?] Potential plot for the Mario movie. The post began with advice for people to read “with a grain of salt”. The information provided was unconfirmed and apparently based on comments from people who may have attended a test screening or had heard reports of the same from others.
The poster noted that while it appeared the information had multiple sources, several people might have copied existing information. Either way, the post on Reddit claimed to be a compilation of these third-party rumors, including a fairly lengthy plot outline.
The piece was a fairly typical forum-style post and at the time did not seem like a particularly big deal at the time. Then, out of the blue, Bowser Streisand turned up.
Post Removed By Reddit For Copyright Infringement
As the embedded image shows, the user’s post was subsequently removed by Reddit’s Legal Operations team following a “copyright claim by a third party.”
The important thing here is to find out who sent the notice and on what grounds. We contacted Reddit PR and the site’s legal team but neither wanted to make any further comment, despite appearing to be aware of the notice. Copies of the copyright notices sent to Reddit users do not help much either, since these do not relay who made the copyright complaint or on what grounds.
An educated guess suggests that the most logical complainants might include Nintendo, Illumination, or Universal Pictures. A malicious third party with too much time on their hands might also be a possibility but we would’ve expected more engagement from Reddit if that was the case.
So, if we rule out the ‘bad actor’ theory for a moment, we’re left with the prospect of a genuine copyright complaint from a rightsholder – but on what grounds?
Fair Use? A Review? Reporting Facts?
Given that the Reddit post contained no screenshots or video clips from the movie, logic suggests that the problem must lie in the post’s text. After ruling out the existence of copyrighted script elements, for example, we’re left with the possibility that the post was removed for carrying spoilers. But would that be illegal under US copyright law?
Under the doctrine of fair use, the law allows people to use portions of a copyrighted work without first obtaining permission from the owner. However, since fair use is a defense, conflicts need to be settled in court. Every case has its own nuances and in the ‘Mario’ post there are unusual issues, not least a complete absence of third-party copyrighted material.
The post (which can still be found on Twitter if people really, really want to see it), uses ‘Mario Movie’ rumors to form a basic (and ultimately positive) review. So, if the speculation is accurate, it could be argued that the post is a simple statement of facts. However, if the post does contain a large number of genuine plot spoilers, some law firms are prepared to put up a fight on copyright infringement and other grounds.
Spoilers: Are They Copyright Infringement?
‘The Spoiling Dead’ was a thriving online community dedicated to The Walking Dead. Their passion for the hit zombie show was extreme and if inside information became available, they were prepared to publish big spoilers. The promise to reveal who killed the character ‘Negan’ after a show cliffhanger pushed AMC’s patience to the limit and through lawfirm Kilpatrick Townsend & Stockton LLP, the company took action.
In a 2016 cease-and-desist notice, the operators of the ‘The Spoiling Dead’ were accused of receiving “copyright protected, trade secret information about the most critical plot information” with a plan to “distribute this purported highly confidential information” despite knowing that such distribution would damage AMC.
According to AMC, significant spoilers can be considered copyright infringement.
“The release of plot summaries and particularly the types of crucial plot elements that you have stated you intend to release, have been found to constitute copyright infringement,” the company’s legal team told The Spoiling Dead.
“Specifically, in Twin Peaks Productions vs. Publications International, the Court ruled that publishing a work that ‘recount[s] for its readers precisely the plot details’ of a fictional work constitutes copyright infringement. ”
In the same year, HBO filed DMCA takedown notices against a YouTuber who persistently posted accurate predictions of forthcoming events in hit show Game of Thrones, again claiming breach of copyright.
YouTube eventually reinstated the videos but this event showed that unless users are prepared to fight back, content can and will be taken down at the press of a button.
It’s a little too early to say if a DMCA takedown notice was the most appropriate tool to take down the ‘Mario Movie’ speculation post, but the copyright system is a quick fix and people tend not to ask too many questions.
Not usually, anyway.