No Mario’s Sky Team Responds to Takedown Notice With DMCA’s Sky

No Mario’s Sky Team Responds to Takedown Notice With DMCA’s Sky

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No Mario's Sky Team Responds to Takedown Notice With DMCA's Sky
Image: itch.io

Nintendo squashed a fan-made game called No Mario’s Sky, but the project’s development team promptly responded with another game, DMCA’s Sky.

Lately, it would seem Nintendo’s legal beagles have been hot on the trail for any and all digital software content believed to infringe on their copyrighted work. The latest example Nintendo News learned about is developer ASMB Games’ No Mario’s Sky, a simple game that blends aspects from Nintendo’s Super Mario IP with that of studio Hello Games’ space exploration game No Man’s Sky.

(ASMB Games is a four-man indie studio that received its name from the first names of its members: Alex McDonald, Sam Izzo, Max Cahill, and Ben Porter.)

We recently chatted with a few of the guys responsible for bringing No Mario’s Sky to life — to learn more about their project and to see if they had any concerns with Nintendo stepping in to take legal action. Alex Mcdonald, the game’s art and sound director, along with Ben Porter, one of the game’s three programmers, answered our questions.

“Ben and I were coming up with ideas last week for Ludum Dare, a popular game jam event where thousands of game developers spend 72 hours to create games,” Mcdonald told Nintendo News on Thursday. “We wanted to build something similar to No Man’s Sky and, after some brainstorming, we decided to go for a mashup with Mario because of the interesting gameplay opportunities it presented. Once the theme for Ludum Dare was announced as ‘Ancient Technology’ we knew we could follow up on that idea. We then jammed our hearts out.”

No Mario’s Sky – Gameplay Trailer

ASMB Games released the first public version of No Mario’s Sky on Tuesday, August 30. The team spent the next few days tackling reported bugs and responding to players’ online feedback.

Despite No Mario’s Sky having a similar look and feel to Nintendo’s Super Mario Bros., Mcdonald said the game uses completely original artwork and sounds. “We made all the assets by hand,” he said. “It was a lot of fun designing our own versions of the characters, like Muscular Toad and Goofy Mario.”

As with any video game project that closely resembles one of Nintendo’s IP (intellectual property), there’s always risk involved that may send countless hours of work into a deep, dark, and bottomless abyss. But Porter and Mcdonald had already considered that possibility.

“We all grew up with Nintendo and made this game as our own tribute to Mario and No Man’s Sky,” Porter explained to us. “If Nintendo asks, we’re more than happy to change the theme of the game, and our team is already brainstorming some variations.”

“We are expecting it to be honest,” Mcdonald said. “We have some backup assets that are not Mario related. Nintendo doesn’t have a [copyright] for jumping and boopin’ floating tiles, right?”

One question often asked whenever a fan-made game starts circulating the Internet is how much money, if any, are the developers generating from it. “Not a single cent,” Mcdonald said. “It’s just a silly, free Ludum Dare game.”

But on Sunday (yesterday), just four days after No Mario’s Sky was released, the small indie studio received a takedown notice from a Brian Sniffen, an attorney who claims to represent Nintendo of America in matters related to IP. And, very shortly after, Mcdonald and crew told fans and supporters what happened via Twitter.

A portion of the takedown notice, as posted on a website called itch.io, reads “Nintendo recently learned that No Mario’s Sky infringes copyrights owned by Nintendo. This notice is provided pursuant to the Digital Millennium Copyright Act, 17 USC § 512, and itch.io’s Terms of Service.”

We asked Porter his thoughts on the matter yesterday evening, and here’s what he told us:

“We’re disappointed we had to take the game down, but are overwhelmed at the positive response we’ve had. The game uses all original art and is clearly a parody, but we don’t have the time or resources to dispute the request. We’ve re-themed the game as ‘DMCA’s Sky‘ with non-infringing characters such as Spaceman Finn and Princess Mango. Thanks again to everyone who played No Mario’s Sky while it was still up.”

Taking down No Mario’s Sky places another feather in Nintendo’s wide-brimmed cap, and the game has now joined the digital graveyard where other fan-made creations lay to rest, such as AM2R (Another Metroid II Remake) and Pokémon Uranium.

For those who are still able to play No Mario’s Sky, Mcdonald and Porter joke that Princess Peach may or may not be tucked away on one of the game’s planets.

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