Shigesato Itoi in Totoro
A lot of people seem to be confused about the recent no EarthBound on Virtual Console thing. That, or they don’t understand the full story, so I’m going to try to clarify some things as best as I can here.
A lot of people are seeing this page that compares a few EarthBound songs to real-life stuff, but that page wasn’t meant to show off legal issues or anything. I made that post last week as a kind of neat trivia thing, that’s all. But I’ll go into more detail here now.
Tons of songs and info and stuff ahead. Get yourself a sandwich or something first
You can read the original post about no EarthBound on Virtual Console here.
Legal stuff clarification
First, it’s important to understand that Nintendo is bombarded with lawsuits all the time. Being a big, profitable company helps this, especially in our lawsuit-happy society. I don’t follow game news very often, but I do recall these recent examples.
- Nintendo sued for its DS touch screen
- Nintendo loses controller-related lawsuit
- Nintendo sued over Wii straps… again
- Class-action suit because of ill effects of Wii games
- Nintendo sued for music used in a Paper Mario commercial. – but there was an internal mistake (sound familiar? ) and the lawsuit-happy company decided not to sue after all
Whether you win or lose a case in court, you’re going to pay a LOT of money defending yourself. Of course, if you lose, you’ll lose a lot more, but just having to go to court will cost a whole lot of money.
To avoid crap lawsuits, Nintendo has a team of legal people who have to go through everything Nintendo plans to release and look for anything that can cause potential lawsuits. Then these things are fixed if necessary.
The point is: they’re trying to avoid lawsuits in the first place. It doesn’t matter if they could clearly successfully win lawsuits brought against them; they’d still lose money in the process. Having this team of legal people is cheaper than putting up with every lawsuit that every crazy money-hungry company hits them with.
This is an important point that I think many people don’t understand. The point is to stay out of court altogther. If the legal team feels uneasy with anything – even the tiniest thing – then they won’t give their approval.
I don’t play many Virtual Console games, but one easy example I do know about is StarTropics. The legal team didn’t allow it to get released until every instance of “Yo-Yo” was changed (it got changed to “Star”, incidentally). This seems ridiculous to us, but the legal folks obviously did their homework, because in Canada a company owns a trademark for that term.
Which reminds me, EarthBound has its share of yo-yos too. I bet they would’ve been changed, too. I bet a lot of little things like that would’ve been changed. I do know that Salvador Dali’s estate is extremely protective of how his name and works are used, so I wouldn’t be surprised if the Dali’s Clock enemy would’ve been changed in some way, name-wise and/or graphics-wise. I’m not a lawyer, but if I can find this stuff out, paid expert professionals can probably find 100x more.
Why is this stuff a problem now?
Another common question is, “Why is this a problem now? They released EarthBound like 15 years ago and this stuff wasn’t a problem.”
In fact, Nintendo DID have a problem with a lot of stuff in EarthBound back in 1995. A lot of changes had to be made before the 1995 legal squad then gave its approval:
The Runaway Five were too similar to the Blues Brothers so their suits had to be changed
Red hospital crosses had to be removed, because it’s a trademark of the Red Cross organization and they’re very anal about its use. A recent example is here
And they didn’t half-ass their legal combing. They even noticed and changed things like the nurses’ hospital hats.
Grateful Dead Valley had to be changed to Peaceful Rest Valley
Dr. Andonuts’ flying machine, the Sky Walker, was changed to the Sky Runner for obvious Star Wars reasons
Trucks that had a vague Coca-Cola logo lookalike were changed to something else
There are also things like default names, which had a set of Beatles names that was cut from EarthBound. There are probably many more things that I’ve forgotten or that have escaped my notice. My incomplete site chronicling EB’s censorship, legal-related changes, mistranslations, good translations, and other stuff can be seen here.
So the question is, why didn’t the legal people in 1995 change all this other stuff that’s a problem now? Intellectual property law hasn’t changed very much since then, right?
What’s changed is the Internet. Back in 1995, we didn’t have Google, or Wikipedia, or YouTube, or fansites. The legal people obviously went through the game as best as they could, but some of this other stuff IS pretty obscure. Nowadays, one search on Google and a check on Wikipedia and YouTube can get you all kinds of information about this sort of stuff.
Then of course is the fact that the recording industry is a lot more sue-happy than it used to be. RIAA and all that, I’m sure I don’t need to say anymore.
It also doesn’t help that the musicians and producers have gone on record in interviews stating that they used specific movies and songs for inspiration for stuff in the game. Though luckily most of it hasn’t been translated yet (someday! ) so that probably wasn’t a very big factor. I should mention quickly though that the game’s musicians LOVE music, so their use of samples and other stuff from other songs wasn’t meant to be cheap, but to pay homage to musicians who inspired them. They even used some of their own songs in the game, the bicycle song wasn’t meant for EarthBound originally, and Dalaam’s music was something else originally. The musicians borrowed from everywhere, which is why EarthBound has so much music and so much varied music. No harm was intended, but times change.
A Closer Look
Let’s do a little experiment. Let’s pretend we’re on the team of NOA’s legal guys, and let’s try to imagine what we would do when we were told to look through EarthBound for a possible Virtual Console release.
I think the first thing we’d do is look at any notes the legal people from 1995 might’ve made about the game. Those guys were thorough, so there were probably pages of things listed. Many of them probably weren’t deemed a problem back then, but might be a problem now, now that the Internet is commonplace and companies (especially record companies) love to make money from lawsuits more than ever. So that alone will probably give us a couple pages of stuff that needs to be fixed for the VC release.
Next, to learn more about the game, we’d do some online searches. Google is useful, as is Wikipedia. For a long time, the EarthBound article on Wikipedia had a long list of pop-culture references and similarities. It was taken down a while back by Wikipedia’s editors (I guess it broke some mundane rule or something), but here’s a lot of what was on it. Let’s assess each thing individually.
In the Japanese version of EarthBound, Mother 2, many of the extra alternate names for characters and such are that of Beatles band members. Among them are John (Ness), Yoko (Paula), Paul (Jeff), George (Poo), and Ringo (King). In this particular set, the main character’s favorite food is “Honey Pie”, and his favorite thing is “Love”.
Already taken care of by 1995 legal team
A question is asked by a townsperson in Onett that relates to the Beatles’ song “Yesterday”.
This was actually added IN by the localizers, so it shouldn’t be a problem.
The yellow submarine in the game is obviously a nod to the Beatles song and animated movie, Yellow Submarine. (A sign near the submarine says “The yellow color is a coincidence.”)
Probably nothing to worry about
A member of a band in the game called the Runaway Five references a song which The Beatles covered called “Money (That’s What I Want)”, originally by Barrett Strong.
If it’s just meant to pay tribute to the Beatles, it’s probably fine
The song played while the Dungeon Man is in your party contains a sample from Sgt. Pepper’s Lonely Hearts Club Band (Reprise) (MP3 download).
Yeah, this is probably near uh-oh territory…
After you have been to the Tenda Village and progressed to The Lost Underworld, the Tenda Elder will bid you farewell by saying, “So long. I say goodbye”, a possible reference to the Beatles songs “Kansas City” and “Hello, Goodbye”.
Seems like another coincidence and/or stretch, probably nothing to worry about
The first few measures of the song played when you wake up at a hotel closely resembles a slowed down version of the melody from The Beatles song “Good Morning Good Morning.” (MP3 Download)
This is definitely true, but it’s probably an acceptable homage. Even so, it might not be wise to mess with whoever owns the rights to Beatles stuff…
When entering Giygas’s lair via the Lost Underworld, a song reminiscent of the prelude to “All You Need Is Love” (the trumpets performing the Marseillaise) is played. (MP3 Download)
This is true, but it’s just a short sample played at a slower speed, and it’s technically from the French national anthem. But knowing the musicians’ love for the Beatles, the sample probably did come from this song…
(the above is a half-speed clip from the Beatles song)
The four main characters talk to someone who looks like Mr. T. Fans almost exclusively refer to him as such.
This is very true. Whether or not it was based on him is unknown, but it might be best to change him…
The music played when starting a new game and naming the characters contains a short musical sample from the theme song for the show Monty Python’s Flying Circus, John Philip Sousa’s Liberty Bell March.
The march song is probably free to use, but the sample used does sound like it’s from the Monty Python intro…
In Jackie’s Cafe, the music contains a sample from the theme song for the Our Gang film series. Also heard in the background are the first four bars of The Star-Spangled Banner.
The Star Spangled Banner thing is probably fine, but the Little Rascals “Our Gang” song might need changing…
The background music for Moonside has a sample from the Ric Ocasek song, “Keep On Laughin”. (MP3 Download)
Definitely true. Probably isn’t too bad of a problem, but look into it more.
One of the weapons Ness can equip is called the Casey Bat. While it increases his Offense more than any other weapon he can equip, it misses three times out of four (all his other bats miss one time out of sixteen). Appropriate, since the bat’s name is a reference to Casey at the Bat, the baseball poem by Ernest Thayer about a revered batter, the “mighty” Casey, who strikes out.
Probably nothing to worry about, especially since the 1995 localizers gave it this name.
One battle music track features music similar to the intro from “Johnny B. Goode” and several other Chuck Berry songs. (MP3 Download)
This is probably pretty bad. It’s not the same song of course, but a little too similar in too many ways to feel comfortable legal-wise…
(note: this song is in EarthBound Zero/MOTHER 1 too. It was also planned to be used in Smash Bros. Brawl but was cut out of all versions of the game.)
The Runaway Five sharply resemble the Blues Brothers (especially the two lead singers). The original Japanese version had the band wearing black suits instead of the colored clothes of the American release, and were called the “Tonzura Brothers”.
The 1995 legal team had them fix this, but look into it more possibly
An NPC in the Onett arcade calls Ness “a real Rambo type”.
Nothing to worry about.
Giant Step and Lilliput Steps are references to Gulliver’s Travels.
Nothing to worry about.
Two enemies in the game share the names of famous David Bowie songs: “Starman” (the trademark Starmen enemies appear throughout the game) and “Diamond Dogs” (Diamond Dog is one of the major bosses in the game). The veiny machine from his “Ashes to Ashes” video also resembles the final boss of the game, Giygas.
Possibly just coincidence, but nothing to worry about.
The Starmen characters appear to be based on the alien from the classic sci-fi film The Day the Earth Stood Still.
Possibly, but probably nothing to worry about.
During the battle with the Slimy Little Pile (one of Master Belch’s minions) one can hear a sample of the Super Mario Bros. theme.
Can’t tell if this is true or not, but it’s not a problem either way.
Aloysius Minch, Pokey’s father, is a clever opposite to Atticus Finch from the book To Kill a Mockingbird by Harper Lee.
This was added in by the localizers, and it shouldn’t be a problem.
In the Japanese release of EarthBound (Mother 2), there is a set of default names for the characters and items related to the Mario series. Ness, Paula, Jeff, and Poo become Mario, Peach, Luigi, and Toad, respectivly. The dog (King) becomes Yoshi, the player’s favorite food becomes “mushroom”, and the player’s favorite thing becomes “goal”.
Not a problem.
The arcade in Onett contains a couple of Donkey Kong arcade machines. There are no real titles on the machines, but the tell-tale red girder pattern of the first level shows on the first machine in front row, and on the second-to-last machine in the back row. Also, the main stage theme for Xevious can be heard in the background noise.
Not a problem.
One of the battle themes resembles the song Tequila by The Champs. (MP3 Download)
Yeah, this is strikingly similar. It might need to be changed…
A character in Onett will play a melody from Dvorak’s Symphony No. 9, movement 2 on trumpet upon being spoken to. (MP3 Download)
This is true, but this music is in the public domain, so no worries here.
Shigesato Itoi has revealed in interviews that Giygas’ dialogue was inspired by a traumatic childhood experience wherein he mistakenly walked into an adult movie theatre playing a rape scene.
Strange, but poses no legal problems.
BTW, you can read more about this and see the video clip here
The Mr. Saturn’s font is inspired by Shigesato Itoi’s daughter’s handwriting.
Okay, no problem. The English font was made by the localizers anyway.
There is a boss fight with a fire-breathing, snake-like sea monster called the Kraken. This is a reference to the sea-creature of legend.
Nothing to worry about.
The second song played by the Runaway Five in the Chaos Theater strongly resembles the song The Changeling by The Doors. (MP3 Download)
Yeah, this is somewhat similar enough to be uncomfortable…
The second-weakest hat for Ness is the “Mr. Baseball Cap”. This is a reference to the Tom Selleck movie Mr. Baseball about an American baseball player who played on a Japanese baseball team.
A pretty vague reference, but it should be okay.
The Peaceful Rest Valley was known as the Grateful Dead Valley in the original Japanese Mother 2.
1995 legal team already had that fixed.
You can find a joke story about a man making excuses to a police officer after being pulled over on the New Jersey Turnpike if you search near the desk of the purchasable house in Onett.
This shouldn’t be a problem. The localizers added in the Jersey Turnpike reference anyway.
Mother 2 makes a Star Wars reference with a ship called “Sky Walker” (translated as “Sky Runner”).
The 1995 legal team had this fixed, so it should be fine now.
The theme played while in the Sky Runner sounds similar to the synthesized introduction of The Who song, Won’t Get Fooled Again. (MP3 Download)
Yeah, this is extremely similar, it might need to be changed…
The man who pops in periodically and takes your photo bears a striking resemblance to Dr. Demento.
Coincidence, no problem.
In the original Japanese version, the hospitals all had red crosses somewhere on the building. They were removed from the English version, presumably because of possible copyright conflicts with the Red Cross.
1995 legal team already took care of this, no problem.
The drugstore song sounds a lot like a song called the Dallas Rag.
This is true. The song is really old, but its status should be checked out just in case
The music in Belch’s factory sounds a lot like the beginning to Pink Floyd’s “Welcome to the Machine”. (MP3 Download)
It does. It may be coincidence, but it’s still uncomfortable.
The hotel music sounds a lot like a famous song called “El Bimbo” (MP3 Download)
Yes, this is quite similar…
NOTE: Like I mentioned, this is just what I would’ve said had I been in charge of looking for potential lawsuit issues so Nintendo could avoid them. It also only took me like 10 minutes to find all this information on Google and Wikipedia and check it out on YouTube and Google Images. Someone paid big bucks to do this would probably have found a lot more stuff than what’s here.
When you add up all these issues and all the other text issues we probably don’t know much about, I bet it all spans many, many pages in some NOA lawyer’s files. It’s probably why NCL was like, “Geez, what’s the problem?” when changes were asked to be made.
Why not a problem in Japan?
Another question I’m seeing often is, “Why is this a problem with EarthBound, but not with the MOTHER games in Japan? Especially with MOTHER 1+2 from a few years back…”
I’m not a lawyer, and I won’t even pretend to know how Japanese law works. But from personal and professional experience, I have noticed that Japanese media companies don’t seem to care very much. Turn to any channel of Japanese TV and within 10 minutes you’ll probably hear foreign music that you know wasn’t legally licensed for use. It’s crazy how much it happens. So it’s not surprising (to me, at least) that these legal issues with EarthBound never really mattered. I get the feeling that’s the reason for NCL’s stance of, “Why do we need to make changes?” It might explain why there’s still a lack of MOTHER 2 on the Japanese Virtual console a year after Smash Bros. Brawl was released.
But isn’t MOTHER 2 on Japanese VC?
No. It was available as a demo in the Japanese version of Smash Bros. Brawl (all other versions had the EarthBound demo removed), but it’s still not on the Virtual Console. For some reason I wouldn’t be surprised if it was finally released unmodified on the Japanese VC though.
Can’t NOA just license the music?
I really, really doubt this will happen. It’s a big hassle: rights holders vary from region to region and ownership can change hands often, sometimes there are multiple rights holders too. The costs would also probably outweigh the benefit for Nintendo, and then what if someone says no? Then they’re stuck in the same situation as now, or maybe even worse off. I work in the game and anime localization industry and licensing issues come up all the time, and it is NOT pretty. And very often, things just don’t work out. So my gut feeling says that there is a .0001% chance of this happening.
A common question I see is, “Why reveal this VC news now?” There’s no special reason really. The topic of EarthBound on the Virtual Console comes up all the time on the Starmen.Net forums, but each time it just turns into a bunch of the same uninformed arguments and misinformation that goes in circles forever. I happened to check out one such thread a few days ago and was like, “Man, this is lame. I wish we could say SOMETHING after all this time.” So I e-mailed reid about it, he consulted his contacts, and then wrote it up.
As for why it wasn’t revealed sooner, that was at the request of reid’s contacts. Stuff like this can put people’s jobs on the line. But they gave the OK the other day, on the condition that some specifics be left out.
What about EB Zero and MOTHER 3?
I don’t know. But the hippie song from EarthBound is in EarthBound Zero/MOTHER 1, so that may be an issue there too. MOTHER 3 has a lot of musical issues too, though. I don’t have the time or know-how to list them all, but here are just a few. Mr. Batty’s song intro is totally taken from the old Batman theme song, for example
Why is EB still on the ESRB site?
Dunno. I don’t keep up with gaming news much, but I have heard that the ESRB site is pretty weird, with whole bunches of games suddenly disappearing sometimes, only to reappear some other times. But I don’t know. Maybe it’s just a case of someone (at Nintendo or the ESRB) not caring.
So there you have it. Hopefully this helped clarify things a little more. I’m not a lawyer and I’m not directly involved in this stuff, but this is probably what a lot of the problem with EarthBound on the Virtual Console is. If I’ve forgotten anything or an actual copyright lawyer has anything to comment about, please let me know!
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308 Comments to EarthBound & Legal Issues
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