Reviewing the Questionable Legality of Fan-Made Translations of Video Games
A. How Are Video Games Translated?
Translating a video game, of course, requires altering the text from one language to another. In the case of most American translation efforts, the alteration is from Japanese to English, since Japanese games are popular candidates for translation1. Compared to translating a book, which at its most basic level can be done with a pen and paper, translating a video game is significantly more complex2. Because video games are really programs or ROMs3, the text is not stored in one central location. Rather, it is scattered throughout the source code4. Finding and isolating the text requires the skills of a software engineer, rather than a translator5. In the case of older games stored on a cartridge, as opposed to a CD or DVD, transferring the ROM to a computer adds an additional step6.
Once all the text is located within the source code, it is extracted and put into a separate file7. From this file, the translator does a traditional translation, as one would with the text from a book. Once complete, another piece of software called a patch is created, which can be applied to any original version of the ROM8. The patch alters the code of the original ROM to display the English text stored in the patch9. The process is similar to how Apple updates iPhones, in that Apple provides software (a patch) which changes the way their phones (the game) behave10. The user is left to acquire the original ROM, whether through legitimate import or illegal downloading. Releasing only the patch, which is useless without the original game, is one of the unwritten rules of fan-made translations11.
B. How Are Video Games Protected Under United States Copyright Law?
The Copyright Act12, contains the statutory rules for copyright protection of “original works of authorship fixed in any tangible medium of expression.”13 Section 102(a) contains a nonexclusive list of the works eligible for protection, which include literary, musical, and audiovisual works14. Video games differ from other copyright-protected media (such as books and paintings) in that they contain audiovisual elements generated according to the source code and input from the player. Therefore, how copyright applies to a text-centric video game, as opposed to a book, is a matter of ongoing debate15. What is known is that video games fall into two categories of copyrightable works listed in section 102(a): audiovisual works, as embodied by the sights and sounds that display on the screen and speakers, and literary works, as embodied by the source code16. Thus, the developer of a video game may enforce two sets of rights with one game.II. Are Fan-Made Translations Legal?
In September 2008, a user named aum0590 posting the following question on the gameFAQS.com message board: “[I]s a fully fleshed out, programmed, fan translation legal? I know the ROM itself isn’t, but this is just a patch right?? [sic] I don't care about the legality of owning it, I'm just highly highly [sic] anticipating this being released to the public.”17 Aum was referring to a fan-made translation of Mother 3, a game that had been out in Japan since 2006. Today, it has yet to see an official American release, though a fan-made translation did come out in 200818. The responses Aum received show a worrying (and occasionally comical) lack of information regarding the legality of fan-made translations, as shown by the following excerpts (all errors in original).
Puffin_Warrior wrote: “Yeah, I'm pretty sure it's illegal.”19
Nidhoggur agreed, adding: “It's probably illegal, but Nintendo knows about the translation, and they don't really care.”20
SirIlpalazzo offered a more specific answer: “The patch itself isn't illegal (unless patches being legal is a very widely-spread myth). The translation might be illegal but I kind of doubt it. It's possible, though. The ROM definitely is illegal.”21
Light_Yagami999 believed the legality did not matter (and offered an interesting take on copyright ownership): “FACT: Many other translations exist outhere. Game companies have better things to do than to worry about translations[.] FACT: NOE [Nintendo of America] likes to pretend Mother 3 doesn't exist. Therefore NOA [Nintendo of America] cannot sue people on what they don't own.”22
VagnF concluded: “It's illegal; copyright holders have the sole authority to translate their works.”23
These responses hint at the three main legal and practical wrinkles that accompany Aum’s basic question of whether a fan-made translation is legal. First, who has the authority to make translations of a copyrighted work? Second, what is the difference between the translation, the patch, the original ROM, and the patched ROM (and does it matter)? And third, do game companies have better things to do than sue fan translators?
The first of these questions seems easily answered. The Copyright Act grants authors the right to make derivative works, that is works based on their preexisting work24. One of the examples of derivative works given in the Act is translations25. Thus it seems copyright holders do have the sole authority to translate their works. Why then is the legality of fan-made translations even a question? The answer lies in fair use. The fair use doctrine provides a limit on the powers of copyright holders and “‘permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’”26 Put another way, an exception is made for a fair use of the copyrighted work.
To address fair use, one must consider the test for fair use and the second wrinkle of translations: the difference between the translation, the patch, the original ROM, and the patched ROM. When an alleged infringer raises fair use as an affirmative defense, courts consider four factors to determine whether the use meets the exception:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.27
Unfortunately, no court has ever applied this test to the case of a fan-made translation28. Further complicating matters is that the fair use analysis is performed on a case-by-case basis29. Meaning that while a court opinion would inform the application of the test to a translated video game, the analysis would still need to take into account all the circumstances particular to the case at hand. Nevertheless, at least one law review article has attempted to apply the test to the case of a fan-made translation30. Regarding the distinction between the translation, the patch, the original ROM, and the patched ROM, the author first concluded that distribution of the original ROM would be copyright infringement31. Applying the four factor analysis to the patched ROM, the author concluded that the patched ROM would not qualify for fair use32. This left the question of whether distributing just the patch or just the translation is a fair use of the copyrighted work.
The practical effect of this legal uncertainty implicates the final wrinkle: whether copyright holders really care enough about fan-made translation projects to shut them down. Practically, it seems that while fan translations may be illegal, the rights are seldom enforced. In fact, websites like ROMhacking.net continue to post translation patches33, apparently without incident. The expense of litigation, particularly with an issue of first impression like fan translations, can be prohibitively expensive. For games that have not been officially released in the United States, litigation is arguably a waste of money since there are no sales for the fan-made translation to cut into. The recent fan translation of Final Fantasy Type-0 is illustrative of this point, and the change in a developer’s attitude an official release can create. Until recently, Final Fantasy Type-0 was not available in English, either officially or unofficially, though it was released in Japan in 2011. Dedicated fans of the series had been publically attempting to translate the game themselves and release a patch34, since mid-201235. Two years later, on June 8, 2014, the fan-made patch was released. This surprised those following project since the June 8th date was months before the translation team had stated they expected to be finished36. Two days later, Square Enix, the game’s developer, made a surprise announcement of their own: they would be officially releasing Final Fantasy Type-0 in the United States37. It would later come to light that Square Enix had been in talks with the troubled translation team for months, had possibly threatened legal action, and that the patch may have been released early in an attempt to preempt Square Enix’s announcement38.III. Conclusion
It is unclear what exactly transpired between the translation team and Square Enix as their discussions took place under a nondisclosure agreement39. But, the case makes it clear that fan translators should not believe developers never take action. In fact, when developers wish to stop a fan-made translation, they do tend to threaten legal action in the form of a cease and desist letter40. While cease and desist letters only threaten legal action, fan translators should not ignore them. They indicate that the developer has taken an interest in the project and may pursue legal action. Given the unsettled nature of the law as it applies to fan-made translations, translators who receive a cease and desist letter should contact an experienced copyright attorney to discuss their options.
1 Japan has long been a producer of leading video game hardware (for example, the PlayStation consoles) and software (for example, the Final Fantasy, Pac-Man, Mega Man, Mario, Zelda, Pokémon, Resident Evil, Street Fighter, and Metal Gear franchises), and is therefore associated with high-quality games. However, many games from top Japanese developers like Square Enix, which develops the Final Fantasy series, are never officially released in the United States. When the games that do make it to the United States are hits, fans naturally want access to other games in the series or other games from the same developer.
2John Szczepaniak, Fan translations, Hardcoregaming101.net, http://www.hardcoregaming101.net/Fantranslation/Romhacking.htm (last visited May 1, 2015).
3 ROM is more commonly used in the context of fan-made translations. It stands for read-only memory and is often applied to software whose code is only meant to be read, not rewritten, by the computer or video game console.
4 Szczepaniak, supra note 2.
10 For example, the April 2015 iPhone update (iOS 8.3) added additional languages for Siri. Amit Chowdhry, Apple Releases iOS 8.3 to the Public, It Has New Emojis, Forbes Tech (Apr. 8, 2015), http://www.forbes.com/sites/amitchowdhry/2015/04/08/apple-releases-ios-8-3-to-the-public-its-the-update-with-the-new-emojis/.
11 See, e.g., FAQs, The MOTHER 3 Fan Translation, http://mother3.fobby.net/blog/faqs/ (last visited May 1, 2015) (stating that fans translating Mother 3 will not release the original Mother 3 ROM). The second unwritten rule is to stop work on the translation if the game is officially brought to the United States. See, e.g., id. (stating that the translation work will cease if Nintendo decides to officially release the game, since the translators’ “only goal is to get [Mother 3] in the hands of the fans”).
1217 U.S.C. §§ 101–122 (2012), available at https://www.law.cornell.edu/uscode/text/17/chapter-1.
13 Id. § 102(a), available at https://www.law.cornell.edu/uscode/text/17/102.
15 John M. Neclerio & Mathew C. Mousley, Copyright Law Implications in Video Games and Virtual Worlds, in Computer Games and Virtual Worlds 47, 48 (Ross A. Dannenberg et al. ed., 2010).
16Id. at 58.
17 Aum0590, posting to Questioning the Legality of Fan Translation, Gamefaqs.Com Mother 3 Board (Sept. 20, 2008, 3:53 PM), http://www.gamefaqs.com/boards/914622-mother-3/45547108.
18Mike Fahey, Mother 3 Fan Translation Completed, Kotaku (Oct. 17, 2008), http://kotaku.com/5065032/mother-3-fan-translation-completed. Mother 2 was the only game in the series to be officially released in the United States, where it was called EarthBound.
19 Puffin_Warrior, posting to Questioning the Legality of Fan Translation, GameFAQs.com-Mother 3 Board (Sept. 20, 2008, 3:55 PM), http://www.gamefaqs.com/boards/914622-mother-3/45547108.
20 Nidhoggur, posting to Questioning the Legality of Fan Translation, GameFAQs.com-Mother 3 Board (Sept. 20, 2008, 4:28 PM), http://www.gamefaqs.com/boards/914622-mother-3/45547108.
21 SirIlpalazzo, posting to Questioning the Legality of Fan Translation, GameFAQs.com-Mother 3 Board (Sept. 20, 2008, 5:46 PM), http://www.gamefaqs.com/boards/914622-mother-3/45547108.
22 Light_Yagami999, posting to Questioning the Legality of Fan Translation, GameFAQs.com-Mother 3 Board (Sept. 20, 2008, 6:47 PM), http://www.gamefaqs.com/boards/914622-mother-3/45547108.
23 VagnF, posting to Questioning the Legality of Fan Translation, GameFAQs.com-Mother 3 Board (Sept. 22, 2008, 10:24 AM), http://www.gamefaqs.com/boards/914622-mother-3/45547108.
24 17 U.S.C. § 106(1) (2012), available at https://www.law.cornell.edu/uscode/text/17/106.
25 Id. § 101, available at https://www.law.cornell.edu/uscode/text/17/101.
26 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (citing Stewart v. Abend, 495 U.S. 207, 236 (1990)), available at https://www.law.cornell.edu/supct/html/92-1292.ZS.html.
27 17 U.S.C. § 107, available at https://www.law.cornell.edu/uscode/text/17/107.
28 Jaime E. Muscar, Note, A Winner is Who? Fair Use and the Online Distribution of Manga and Video Game Fan Translations, 9 Vand. J. Ent. & Tech. L. 223, 237 (2006), available at http://www.jetlaw.org/wp-content/journal-pdfs/Muscar.pdf. The author’s own legal research, conducted in 2015, found no cases as well.
29 Campbell, 510 U.S. at 577 (citing, among others, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985)), available at https://www.law.cornell.edu/supct/html/92-1292.ZS.html.
30 Muscar, supra note 28.
31 Muscar, supra note 28, at 248.
32 Muscar, supra note 28, at 247–51.
33 E.g., Yo! Noid Translation Information Page, ROMhacking.net, http://www.romhacking.net/translations/2331/ (last visited May 1, 2015) (stating the translation patch for Yo! Noid was released on April 12, 2015).
34 Final Fantasy Type-0 (PSP)–English Translation, Sky’s Romhacking Nest, http://www.skybladecloud.net/projects/final-fantasy-type-0-psp-english-translation/ (last visited May 1, 2015).
35 Jason Schreier, Final Fantasy Fan Translation Has Become a Fiasco, Kotaku (July 21, 2014), http://kotaku.com/final-fantasy-fan-translation-has-become-a-fiasco-1608340061.
38Id. Schreier’s article offers an interesting account of the events surrounding the announcements. See id.
40 Muscar, supra note 28, at 225.