Nintendo is a multinational electronic entertainment company that generated a net income of approximately $4.4 billion in the 2021 fiscal year.[1] It is well-known for selling some of the most popular video game consoles of all time and for selling millions of units for devices like the Nintendo DS and Nintendo Switch.[2] The accompanying games for these consoles are similarly popular with Wii Sports selling 82.65 million units and Pokemon Red/Green/Blue version selling 31.37 million units as of 2022.[3] Within a video game, many elements exist in tandem to contribute a cohesive product, and the music accompanying the gaming experience influences the player’s emotions.[4] As evidenced by its more broad success, Nintendo possesses a strong investment in maintaining its copyright portfolio, especially as it relates to music, because the music in video games is inextricably linked to the complete work. However, because music is a passive experience that can be enjoyed independently to evoke memory or emotion,[5] the auditory element of a game may be isolated to elicit similar effects in daily life. This leads to repeat unauthorized use of Nintendo’s music, which Nintendo argues amounts to copyright infringement.[6]
Nintendo’s circumvention termination approach to combat this unauthorized use of video game music utilizes the notice-and-takedown processes available for platforms like YouTube, where users often upload video game-related content.[7] In early 2022, Nintendo filed a total of 2,200 copyright strikes against the YouTube channel “GilvaSunner”[8] for videos uploaded to the channel containing music from Nintendo games like Kirby and Luigi’s Mansion.[9] YouTube later confirmed on Twitter that the copyright strikes were issued directly from Nintendo itself.[10] While GilvaSunner announced the official cessation of their channel, it had received over 1.5 billion views prior to its deletion, exposing an interesting gap in Nintendo’s copyright maintenance strategy.[11]
Video game publishers aware of such potential music-related infringement like Atlus, Capcom, and Square Enix[12] have all uploaded portions of their copyrighted music onto streaming services like Spotify to take advantage of this market.[13] While Nintendo has created the Pokemon Sound Library which allows users to access music from games like Diamond and Pearl,[14] it is limited to those particular games, and does not account for the other 79 games related to the Pokemon franchise[15] or other Nintendo-owned properties like Kirby or Luigi’s Mansion.[16] The focus of the Pokémon Sound Library would likely be too restrictive compared to Spotify’s larger and more varied library of musical works.[17]
While some video game titles supported by Nintendo systems are available for music streaming,[18] they are offered through the video game publisher that owns the given franchise and maintains the publication rights, not Nintendo.[19] Perhaps instead of taking down all the videos that contain Nintendo’s copyrighted video game music, Nintendo could further expand the Sound Library to include music from published video games other than just Pokemon. This way, Nintendo can establish advertisements or regular subscription rates dependent on use for revenue to ensure satisfactory royalties for Nintendo and the other potential affiliated companies who own rights to music supported by Nintendo systems.
[1] See Thomas Alsop, Nintendo’s net income from fiscal 2008 to 2021 (in thousands of U.S. dollars), Statista (Feb. 8, 2022), https://www.statista.com/statistics/216625/net-income-of-nintendo-since-2008/.
[2] See Thomas Alsop, Video game console sales worldwide for products total lifespan as of September 2021 (in million units), Statista (Feb. 8, 2022), https://www.statista.com/statistics/268966/total-number-of-game-consoles-sold-worldwide-by-console-type/.
[3] See Thomas Alsop, All-time best-selling console games based on global unit sales as of March 2022 (in million units), Statista (Mar. 8, 2022), https://www.statista.com/statistics/264530/all-time-best-selling-console-games-worldwide/.
[4] See Jack Shillberg, The Importance Of Music In Video Games, HeadStuff (Aug. 4, 2020), https://headstuff.org/entertainment/gaming/why-music-in-video-games-is-so-important/
[5] See Tiffany Jenkins, Why Does Music Evoke Memories?, BBC Culture (Oct. 21, 2014), https://www.bbc.com/culture/article/20140417-why-does-music-evoke-memories.
[6] See Ashley King, Nintendo Is Ripping Down YouTube Videos That Contain Its Game Soundtracks, Digital Music News (Dec. 9, 2020), https://www.digitalmusicnews.com/2020/12/09/nintendo-music-youtube-copyright-strikes/
[7] See Insanul Ahmed, Nintendo Hits Popular YouTube Video Game Music Channels with Hundreds of Copyright Claims, Genius (Aug. 17, 2019), https://genius.com/a/nintendo-hits-popular-youtube-video-game-music-channels-with-hundreds-of-copyright-claims.
[8] See Ana Diaz, Nintendo Crushes Fan-Favorite Game Music YouTube Channel with Thousands of Copyright claims, Polygon (Feb 3, 2022, 11:56 AM), https://www.polygon.com/22916040/nintendo-video-game-music-osts-youtube-gilvasunner-copyright-takedown.
[9] See Liam Doolan, YouTube Confirms Copyright Claims on GilvaSunner’s Channel Were From Nintendo, Nintendolife (Feb. 8, 2022), https://www.nintendolife.com/news/2022/02/youtube-confirms-copyright-claims-on-gilvasunners-channel-were-from-nintendo.
[10] See id.
[11] See Diaz, supra note 9.
[12] See Mollie Taylor, Almost Every Persona Soundtrack Is Now Available on Spotify and Apple Music, PC Gamer (Jan. 5, 2021), https://www.pcgamer.com/almost-every-persona-soundtrack-is-now-available-on-spotify-and-apple-music/; Wes Fenlon, Capcom Has Added a Truckload of Game Soundtracks to Spotify, PC Gamer (Feb. 11, 2019), https://www.pcgamer.com/capcom-has-added-a-truckload-of-game-soundtracks-to-spotify/; Streaming Music Series, Square Enix, https://www.jp.square-enix.com/music/onstream/index_en.html (last visited Feb. 15, 2022); Japan Video Console and PC Game Publishers Report 2020: Performance Analysis of Bandai Namco, Capcom, Koei Tecmo, Konami, Sega Sammy/Atlus, Square Enix, Bus. Insider: Markets (Dec. 3, 2020), https://markets.businessinsider.com/news/stocks/japan-video-console-and-pc-game-publishers-report-2020-performance-analysis-of-bandai-namco-capcom-koei-tecmo-konami-sega-sammy-atlus-square-enix-1029863549. (finding that the companies mentioned above are established video game publishers).
[13] See Taylor, supra note 13; Fenlon, supra note 13; Streaming Music Series, supra note 13. (specifying that music from each video game publisher is available for music streaming)
[14] See Pokemon Sound Library, https://soundlibrary.pokemon.co.jp/en (last visited Feb. 15, 2022).
[15] See All Pokemon Video Games, https://www.pokemon.com/us/pokemon-video-games/all-pokemon-games/ (last visited Mar. 24, 2022).
[16] See Doolan, supra note 10.
[17] See Taylor, supra note 13; Fenlon, supra note 13; Streaming Music Series, supra note 13. (clarifying that, at the very least, music from Atlus, Capcom, and Square Enix are already available on Spotify).
[18] See Nicole Carpenter, Castlevania Soundtrack Collection Now on Spotify, Thanks to Konami Europe, Polygon (May 20, 2020), https://www.polygon.com/2020/5/20/21264861/castlevania-soundtracks-konami-spotify. (explaining that Castlevania, a video game franchise, currently has music distributed through Spotify).
[19] See Castlevania Advance Collection, Nintendo, https://www.nintendo.com/games/detail/castlevania-advance-collection-switch/ (last visited Feb 15, 2022). (offering a Konami Castlevania collection game complete with its soundtrack, through a Nintendo video game system).