As the exam season draws to a close, I, like many of you, will be spending my time away from school playing video games. One of my favourite video games is Earthbound. This is a Japanese role-playing game, or JRPG, which has the protagonist Ness attempt to save the world from aliens. The game was released for the Super Nintendo Entertainment System, or SNES in Japan in August 1994 in Japan and was released in North America in June 1995. The title Earthbound however, is not the original title of the game, it was released in Japan as Mother 2 but because the first Mother game was never released in North America, a name change was needed to ensure that consumers would not be confused. This practice was one aspect of localization and was commonly used at the time. For example, the Japanese games Final Fantasy IV and Final Fantasy VI were released for the SNES but in North America were released as Final Fantasy II and Final Fantasy III respectively (Final Fantasy V was not released in North America until years later because it was considered to be too difficult for North American gamers).
Many games are changed during localization beyond just the title though. The most obvious change is that the language the game was made in needs to be changed into the language for the market the game is going to be sold in, so Earthbound needed to be changed from Japanese into English. However, many more changes occur during localization, such as removing anything that might be deemed offensive in the new market. There are legal reasons for localization changes as well, such as to abide by the IP laws for the market the game is to be sold in. The below example shows how some trucks were changed in Earthbound, with the example on the left being what was in Mother 2, with the example on the right showing how it was changed for Earthbound. As you can see, the truck was changed so that there is no similarity whatsoever between a Coca Cola truck and the truck in Earthbound.
However, while many changes in localization are made, something that is rarely, if ever altered is the music in video games. However, perhaps the music should have been changed in Earthbound and perhaps the music present in its sequel Mother 3 is why it was never released in North America.
The creator of Earthbound Shigesato Itoi, took inspiration from a variety of western music, including the Beatles and the Beach Boys.[1] However, many of the songs in the game go far beyond merely taking inspiration from other musicians, in many instances, the music is actually a distorted sample of the music of other artists. The video below shows the original samples used and what they sound like in the game after being distorted and converted to be played on a SNES cartridge.
https://www.youtube.com/watch?v=E_oc9Ypcb2Q
When the game was being localized, these issues with the soundtrack were acknowledged by the American localization team. One member of the team, Marcus Lindblom, stated that they did discuss the soundtrack with the Nintendo legal team, but the lawyers at Nintendo of America believed that the soundtrack was protected by parody.[2] However, the issue with this is that the soundtrack would not be protected by parody in the USA. Fair use is outlined in section 107 of the Copyright Act and allows fair use when:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.[3]
However, parody needs to comment on the author’s work.[4] The soundtrack is not commenting on anything whatsoever, even considering when the sampling occurs within the context of the plot of Earthbound, there is nothing to suggest that the soundtrack or the game have anything to comment on the works being sampled. As such, the lawyers at Nintendo of America were incorrect, the use of the works does not constitute parody and as such, are not protected by fair use.
Despite this, Earthbound was sold and no artist or record label sued Nintendo of America for the use of the samples. A possible reason is because the game did not sell well in North America, approximately 140,000 copies when the figures to constitute great success were considered to be over three million copies sold.[5] Based on the number of copies sold, it is apparent that the game was not in line with what Nintendo had hoped. Perhaps it is because of the relative obscurity of Earthbound that there were no lawsuits against Nintendo. However, if Nintendo was sued over the use of the music at the time, it is likely that they would have lost because at the time, the relevant case law in 1995 was Grand Upright Music, Ltd. v. Warner Bros. Records Inc., which stated that sampling without permission from the copyright holder constituted copyright infringement.[6]
The law today though, is on Nintendo’s side, because VMG Salsoul, LLC v. Ciccone established that sampling is allowed when it is de minimis.[7] As the sampling that appears in the songs in Earthbound is only a small portion of any given song in Earthbound, it is more likely than not that Nintendo would be able to rely upon fair use, because of the sampling being minimal and therefore, de minimis.
So, if the music of Earthbound does not violate copyright law, then why has its sequel, Mother 3, never been released in North America?
Mother 3 was released in April 2006 for the Gameboy Advance in Japan. The former President of Nintendo of America, Reggie Fils-Aimé is quoted as saying that localizing Mother 3 “just didn’t make business sense”.[8] Given the poor sales figures of Earthbound, the simplest answer is that it is not financially viable to release a sequel of a game that was not profitable. However, given the cult following of the franchise, there is a strong possibility that Mother 3 would perform well if it were released today, and because of the ability to sell the game digitally, costs could be kept low, thus making the threshold for profit much lower than it would have been in the past. However, another issue that could be preventing the game from release is the music in Mother 3.
Much like its predecessor, the game’s soundtrack takes heavy inspiration from other music. However, unlike its predecessor, Mother 3 does not, like its predecessor, sample the music it takes inspiration from, instead, the entirety of many songs in the soundtrack are paying homage to the original works and do so for the entirety of the songs. See the video below for examples of the soundtrack of Mother 3.
https://www.youtube.com/watch?v=WMZ9hXBrQMY
The songs “Isn’t This Such An Utopia?!” and “Mr. Batty Twist” are clearly derived from the “20th Century Fox Fanfare” and the “Batman Theme” respectively but all of the songs in the above video act as a tribute to another work. As such, much of the soundtrack in Mother 3 would not be protected under fair use, meaning that it would be impossible for Mother 3 to have a North American release unless the rights holders of all the songs which were tributed in the soundtrack gave Nintendo a licence to do so. This would likely be a massive expense, given that the Beatles song, “Back in the U.S.S.R.” is one of the songs which has a tribute in the game and that recently, the cost to use a different Beatles song, “Magical Mystery Tour,” in Indiana Jones and the Dial of Destiny cost Disney one million dollars.[9]
As such, Mother 3 is effectively not releasable in North America given how expensive it would be to have Nintendo secure the rights to all the songs tributed. While Nintendo could remove the music and replace it with music that does not require permission from a copyright holder, music is integral to any work and while localization does alter many things to alter a game for a local market, altering the music is something that does not occur in localization because music is part and parcel of the video game experience, so altering the music would fundamentally alter the game in a way that is not comparable to altering Coca Cola trucks into generic trucks or removing offensive content. As such, if Mother 3 cannot be released in North America with as it was intended by the creator, then it should not be released at all. As such, Reggie Fils-Aimé was correct, because releasing Mother 3 in North America does not make business sense.
[1] https://www.switchaboo.com/shigesato-itoi-part-2-mother-earthbound-giygas-and-fishing/
[2] https://kotaku.com/the-man-who-wrote-earthbound-1188669175
[3] https://www.law.cornell.edu/uscode/text/17/107
[4] https://guides.libraries.indiana.edu/c.php?g=158548&p=1581719
[5] https://www.switchaboo.com/shigesato-itoi-part-2-mother-earthbound-giygas-and-fishing/
[6] Grand Upright Music v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)
[7] VMG Salsoul, LLC v. Ciccone, No. 13-57104 (9th Cir. 2016)
[8] https://www.videogameschronicle.com/news/reggie-fils-aime-says-localising-mother-3-didnt-make-business-sense/
[9] https://www.fatherly.com/news/harrison-ford-indiana-jones-dial-of-destiny-beatles
Communications Law