A word of caution for Nintendo upscales

[SomberShroud]

The dolphin emulator forums group warned that Nintendo will take legal action on any packs containing original textures including upscaled ones, therefore if you wish to make a Nintendo licensed upscaled texture pack, it must be mostly originally made textures by you.

 

[SadOrigami]

Please provide proof (screencaps of the messages) on the OP, so I can make this thread sticky and allow further discussion

 

[SomberShroud]

Just so that you're aware, using certain scaling/filtering methods alone might not be considered "custom" enough for a custom/HD texture project. If you're wondering what I'm talking about, have a look at this discussion on a recent matter. However, before I go on, I don't think your project has anything to worry about (explained more below) so before you start sweating, this has my seal of approval, no worries.

Anyway, what it boils down to is that we shouldn't have custom/HD textures that too closely resemble the source textures so that we can avoid infringing on copyrights (and NIntendo loves a good DMCA takedown). E.g. scaling filters do enhance an image, but they often follow the source material too closely, for example, keeping noise or compression artifacts, or edges that should otherwise be smoothed when upscaled. Situations like that makes the "new" texture only slightly distinguishable from the source, which in turn goes back to copyrights and that sort of trouble. So in essence, we're looking for custom/HD textures that are "transformative" enough.

But, as noted in the discussion I linked to, it's on a case-by-case basis that we look into these things. The ones you drew in GIMP are fine, no problems there (they look amazing btw especially that wanted poster). The blob textures made by waifu2x look fine to me as well (a lot of noise has been removed, and imo, looks like an artist redrew it rather than a neural network). The granite textures slightly concern me, if only that the differences aren't very apparent until you view the 512x512 vs 2048x2048 version. Again, it's impressive what waifu2x can do; it literally added texture/depth where there wasn't any in the source. So in short, I think waifu2x manages to be "transformative" for this texture pack since it adds artistic elements not present in the source. Other scaling methods (such as xBR) don't particularly do that, which is what we're concerned about, from a legal standpoint.
Shonumi ~ 2016 - comment link: https://forums.dolphin-emu.org/Thread-super-mario-sunshine-uhd-texture-pack

The original discussion is no longer available but this mod paraphrased it.

 

[RHOPKINS13]

Seems like a bit of a stretch. I know of many N64 Nintendo upscales that to my knowledge have never received any sort of legal action. Render96's texture pack for sm64 is one of them. And there are a ton more available at evilgames.eu.

 

[RAHelllord]

That should be a no-brainer, to be honest. Copyright extends to all parts of a creative work, and that includes textures in video games. If one creates an upscale of an existing texture, using that texture as a direct basis, that counts as a derivative, and is a copyright infringement. If the bigger texture is made from scratch, however, it's not a derivative. Similarly if the bigger texture is created from source photo Nintendo used (for example most of the textures in Super Mario 64 have been taken from a commercial photo CD) then those are also not a derivative and are legal to distribute.
As for untouched textures, those are obviously also copyrighted material directly and distributing those is as illegal as distributing the entire rom. Only exceptions would be fair use like education, research, or reviews.
However, whether Nintendo actually bothers with going after those is another question, in many cases they might not care to check textures specifically unless the mod / patch is big enough to garner widespread attention.

Of course, I am not a lawyer so a few details might not be perfect here, and also this does not constitute legal advice of any kind. But that's pretty much the gist of it.

 

[SomberShroud]

That should be a no-brainer, to be honest. Copyright extends to all parts of a creative work, and that includes textures in video games. If one creates an upscale of an existing texture, using that texture as a direct basis, that counts as a derivative, and is a copyright infringement. If the bigger texture is made from scratch, however, it's not a derivative. Similarly if the bigger texture is created from source photo Nintendo used (for example most of the textures in Super Mario 64 have been taken from a commercial photo CD) then those are also not a derivative and are legal to distribute.
As for untouched textures, those are obviously also copyrighted material directly and distributing those is as illegal as distributing the entire rom. Only exceptions would be fair use like education, research, or reviews.
However, whether Nintendo actually bothers with going after those is another question, in many cases they might not care to check textures specifically unless the mod / patch is big enough to garner widespread attention.

Of course, I am not a lawyer so a few details might not be perfect here, and also this does not constitute legal advice of any kind. But that's pretty much the gist of it.

I don't think you're aware of Nintendos wrath of copyright claims so let me show some examples of how far they are willing to go

https://en.wikipedia.org/wiki/Nintendo_and_fan_games
https://www.wired.com/story/nintendo-copyright-zelda-mod/

you don't hear of any other company being this ruthless about their copyright like all the copyrighted mods in Bethesda games or sonic fan games are still accessible but Nintendo is different. There's a reason dolphin upscalers should be especially scared of Nintendo lawyers over everyone else.

 

[RAHelllord]

I don't think you're aware of Nintendos wrath of copyright claims so let me show some examples of how far they are willing to go

https://en.wikipedia.org/wiki/Nintendo_and_fan_games
https://www.wired.com/story/nintendo-copyright-zelda-mod/

you don't hear of any other company being this ruthless about their copyright like all the copyrighted mods in Bethesda games or sonic fan games are still accessible but Nintendo is different. There's a reason dolphin upscalers should be especially scared of Nintendo lawyers over everyone else.

I am aware, a large part of my day job is dealing with DMCA claims, but what I said above still holds true and Nintendo doesn't just invent laws.
The palworld mods got deleted because palword suddenly got famous, and a large chunk of them used existing assets ripped from previous games, that's a direct copyright violation. At the same time putting those models into Palworld could be argued to be a trademark violation as it might dilute the trademark, Nintendo is very strict with what the franchise is allowed to do and not do and Palworld is very directly going againdt that.

 

[SomberShroud]

I'm normally not this concerned about copyright since sega and sony seem chill about it. I'm just bringing attention to Nintendo since all it takes is one person to be careless for everyone here to suffer the consequences, especially since SadOrigami's encouraging uploading dumps (which are un-altered source images) here, I wouldn't be so chill about it like you and RHOPKINS are being right now.

 

[RAHelllord]

Nintendo can only ever take down the things they own the rights to. If someone uploads an entire dump of copyrighted content then yeah, that dump will get removed. But the rest will be unaffected. Nintendo also has to prove that they own what they request to have taken down, so collateral damage should be minimal.

 

[SadOrigami]

Yeah, I've already took care of that. I'll not be linking any Nintendo related dump in the Excel.