Super Mario Bros. theme part of the 2023 Library of Congress registry | Hacker News Reader

Super Mario Bros. theme part of the 2023 Library of Congress registry

loc.gov

107 pointssegasaturn65 comments

It's pretty hard to get too excited about seeing our culture locked up in a slightly different way. If we had any kind of sanity to our copyright law the super mario bros theme, and for that matter the game itself, would already be in the public domain and just about anything deemed worthy of inclusion in the library of congress would be available as high quality digital downloads to anyone in the US at any time.

In some short years I'm sure we'll just imagine the rules and the feeling of Mario and have it instantly transcribed into playable form and emotion.

Richard Misek talks about this in short documentary[0]. He describes the difference between public domain and public realm. The former being meaningless in terms of access to content, while the latter is what most us think public domain means.

0 = https://aeon.co/videos/who-owns-history-how-remarkable-histo...

I could understand these arguments, in a way, when they are about IP that hasn't been used in decades. But Nintendo still exists and is still producing Mario games. Why should any other company be able to use the Mario theme?

It makes for more creative challenges. If someone has a good idea for a Mario game, they could do it. If Nintendo wants to create something unique, they'd have to take more risks and create something new. We're talking one new character every few decades.

You know what makes for more creative challenges? Not being able to use someone else's character.

Culturally, Mario doesn't belong to any one person or organization. The idea of ideas being property is strange and alien.

There are indigenous tribes who assign ownership of stories and songs to particular people/families. Retelling them without ownership or permission warrants punishment.

The idea of ideas being property is as human as anything.

The only thing that is human about corporations is the people that make them up. There's a several order of magnitude gap between a few people/families in tribes compared to them.

The original claim didn't mention anything about corporations.

The idea of ideas being property is, itself, as old as the idea of property.

My intuition says the notion of property being property had to predate the notion of ideas being property.

The same applies whether it's somebody else's or your own. Is it significantly more creative to continually milk a character you made 40 years ago? How about a character your company made before you even started working there?

I got into this discussion with coworkers about the loss of copyright for Steamboat Willie. They were all like "Now anybody can make Mickey Mouse cartoons!" Not so fast. The name and likeness of Mickey Mouse are also trademarked, and Disney can hold onto them forever.

It's the same with Mario. Even if the copyright on Super Mario Bros. expired today, Nintendo could claim trademark protection on the names and likenesses of Mario, Luigi, Princess Peach, Bowser, the Koopas, etc. Even the theme music. This has already been done. The "Tetris theme" is a public domain Russian folk song called Коробейники -- but The Tetris Company LLC owns a trademark on this song in the video game market.

Tetris is one of the most jealously guarded IPs in the world. Every aspect of Tetris is protected with copyrights and trademarks -- the board dimensions, the pieces, everything. Writing a game that plays like Tetris without a Tetris license is a good way to get sued and found liable. It's entirely possible for Nintendo to lock down protection of the Mario IP in virtual perpetuity in similar fashion, making copyright expiry moot for all but the most unimportant elements (say, the particular shapes of the clouds and horsetail plants in Super Mario Bros.).

Trademark isn't intended to be a backdoor to extend copyright law.

Obviously someone calling for copyright expiration is calling for a sane interpretation (or reinterpretation, if you will) of trademark law.

Even under current law whether you can make a Micky Mouse cartoon probably has more to do with which judge your litigation is in front of than anything else.

Exactly. I don't have an issue with Nintendo maintaining the exclusive ability to create new Mario games because it encourages Nintendo to ensure maintain a certain level of quality. Nintendo wants consumers to associate "Mario" with "quality", so they will only release high-quality Mario games.

We can debate whether Nintendo upholds that standard—I thought some of the Mario Party games were pretty atrocious—but at least the incentive exists.

If it's a good idea for a Mario game, it's probably a good idea for a game that does not use the Mario IP.

I suddenly realized, when working on my mobile platform game, that adult me was developing the Mario game 12-year-old me always wanted to make. It just didn't have Mario in it or use the mechanics like specific power-ups unique to that series. But the platforming itself and, it turns out, things like how level layouts are stored, were pretty similar to Mario.

Kid me would be stoked for that bit of my future.

Sometimes it's the character itself that makes the difference though. Especially in cases where you're dealing with satire involving a figure from our shared culture, but also in the case of works where the artist is drawing from the history of the character and fictional universe they exist in. Sometimes the artist can't just swap out the IP with a generic character and still have the effect they were going for.

Why should they still be able to keep old games locked up just because they're making new ones? Let them profit from their new ones, hell let them continue to repackage and sell the old ones over and over again if they want. Plenty of people will continue to pay for them on their new Nintendo devices, even after they are in the public domain. They've been widely available to play online and in emulation for years but that hasn't stopped Nintendo fans from pulling out their wallets so far.

They've had more than enough time to profit on those old titles, and they certainly have. There's no reason to continue to prevent others from using those old assets, or enjoying the old games as they like. It certainly doesn't encourage the creation of new works to continue giving Nintendo copyright's special "limited" privileges for those titles, and removing them absolutely would encourage new works, as well as help to bring Nintendo's new mario titles new fans.

Quite true. I lost my original Diablo 2 CD key ages ago, then repeatedly pirated it from time to time until Blizzard released the remastered version, which I bought.

Studies have shown, that people who "pirate" music, buy more than those whondon't.

Source?

This I'm guessing: https://torrentfreak.com/pirates-spend-much-more-money-on-mu...

There's certainly truth in that for some pirates. Some folks are just supper passionate about things, and it's natural that they'd be hitting up the internet for early releases, versions only released overseas, demos, etc while also grabbing as much as they can available to them through retail channels.

Speaking personally, in the early days of napster I found so much amazing music I'd never been exposed to from bands I'd never heard of or had given a chance to, that I found myself spending far more money on music than I ever had before. I wasn't obsessive about it like some fans, I just had so much more I wanted than I ever did previously. I had stacks of binders full of CDs, CDs slotted into tall plastic towers, and CDs stacked on bookshelves.

Since then they've all been ripped into FLAC and MP3 and given to friends or stored away somewhere, or lost in moves and the RIAA became so deplorable to me that I vowed to never buy another CD from an RIAA affiliated label ever again and that was the last they ever saw a dime from me from retail sales, although I have imported a few CDs from Australia and Japan which I'm sure had their equivalents to the RIAA. Still, my first steps into music piracy (I don't count the MOD or MIDI files) coincided with the peak of my spending on music.

I think OP is specifically talking about the array of bits that make up “the Super Mario Brothers ROM image” and music, and not the trademarked characters, level designs, and so on in the game.

There is no way in hell Nintendo still makes significant revenue from selling, say, the Super Mario Brothers NES cartridge, or its software image. It is effectively “locked away” in a vault until freed from the bonds of copyright. This happens to so many old works, because copyright is so ridiculously long.

I would love to see a histogram of how much profit all copyright holders make from all artistic products, year by year. I would guess that, for the vast, vast number of works, 99.99 or more percent, they make all their money in less than 10 years and for the remaining 100 or whatever years the work makes $0 and just sits there, wastefully and needlessly kept from the public.

> There is no way in hell Nintendo still makes significant revenue from selling, say, the Super Mario Brothers NES cartridge, or its software image

Why not? Nintendo has been quite successful in selling emulated versions of these games in their ds store and released the wildly popular Nintendo Classic Edition which included this rom and sold over 2 million.

Because of the convenience of playing them on the new consoles. The only people I know who have bought Super Mario Bros Virtual Console releases are the sorts of people who'll buy additional ports of Portal to Nintendo consoles. They're buying the port (the emulator), not the ROM; the availability of the ROM image is not cutting into Nintendo's sales.

I'm not so sure that's true. I simultaneously see people say:

> Nintendo needs to stop hurting ROM sites for games older than 20 years. There's little profit to be made from such old titles.

As well as:

> Why did Nintendo create the NES Classic? You can do the same for far cheaper with a Raspberry Pi. And why are there NES games locked away behind an online subscription? I can play them on my phone for free.

There are definitely many, many reasons to be unhappy with current copyright law. But claiming that Nintendo stands to gain nothing from retaining rights to their ROMs is not a valid critique, and does not pave the way for honest discourse.

The people saying “Why did Nintendo create the NES Classic?” (e.g., me-until-recently) usually have little interest in purchasing a NES Classic. They often have little interest in playing video games.

> But claiming that Nintendo stands to gain nothing from retaining rights to their ROMs

I claim that Nintendo gains little from not selling DRM-free copies of the ROM. There's a big difference between "take down all fangames with a character in a red hat called Mario" and “relinquish all monopoly rights to the public domain”: I suggest that Nintendo wouldn't lose much by being a bit less controlling. They might even recover some reputational damage!

I'd definitely favor a system where you get 10 years of copyright for free automatically. The next year of protection requires registration and a fee of $1. It double every year after that (tune the exponential function to be broadly equivalent to what we currently have if you need to appease Disney).

This encourages IP owners to use it or lose it.

No law of the land should differentiate itself based on a fee or payment of any kind. In other words, no one should be able to just spend money to get a better treatment under the law, period. I like the idea of a 10 year limit through!

I agree, in a world with instant global distribution at near zero cost 10 years is plenty of time to make money on your work, and that term should apply to anyone no matter how much money have.

I also like the idea of a requirement that whenever possible a DRM free copy of a work must be submitted to the copyright office in order to apply for copyright protection so that anyone can go online and see who owns the copyright on a work and how much time is left on it. The copyright office would then automatically make that work available at their website after the expiration of the 10 year period.

> There is no way in hell Nintendo still makes significant revenue from selling, say, the Super Mario Brothers NES cartridge, or its software image.

I mean, I bought it for the Wii Virtual Console, I got the mini NES, I got the mini SNES (that has all-stars right? although that's a port not the ROM, I suppose), I've paid for switch online from time to time which provides it. Mario 35 was pretty neat and I'd pay for it to return if it was offered; again, that's not really the ROM, but still.

It's not yet 40 years old, which is pretty young to be considered an old work, IMHO.

All that said, in terms of just copying, there's not much meaningful enforcement: the roms are out there. You can get them all over the net; you can buy unlicensed hardware devices that include them at all your favorite bazaars, etc. Not much in the way of unlicensed derivative works (other than some unlicensed ports or reimplimentations to similar hardware back in the day), but trademark most likely prevents broad commercial reach of derivative works anyway.

> > There is no way in hell Nintendo still makes significant revenue from selling, say, the Super Mario Brothers NES cartridge, or its software image.

> I mean, I bought it for the Wii Virtual Console, I got the mini NES, I got the mini SNES (that has all-stars right? although that's a port not the ROM, I suppose), I've paid for switch online from time to time which provides it. Mario 35 was pretty neat and I'd pay for it to return if it was offered; again, that's not really the ROM, but still.

Sure, but to reiterate how I read GP:s post, did you buy it "to get the game" or did you buy it to play it on your Wii? I think that's the crux of it. Even if the old games were in public domain, Nintendo could still sell it to you in a product/service that makes it playable on the Wii, which it otherwise would not be, and that would still be worth it to some people.

> It's not yet 40 years old, which is pretty young to be considered an old work, IMHO.

IMHO your HO is likely based on learned behavior, not how things should (whatever that means) or could be.

I didn't have a licensed copy or a good way to play unlicensed copies at the time, so I'll say I paid to get the game. The mini NES has HDMI and is easier to travel with than my aging Wii, so that's nice. I've also now taken possession of the family NES from when I was young, so I can play the game as intended. I also picked up a super famicom recently to play super mario world properly (even with international shipping, it was much less expensive than a north american market SNES), but Nintendo doesn't get new revenue from that.

> But Nintendo still exists and is still producing Mario games.

Good for them. Let them sell this new stuff then. If they want to keep making money, they should have to make new stuff, all the time. Anything 10+ years old belongs in the public domain.

Why should the US get to decide what to do with other countries' IP? China has the same attitude and it is generally frowned upon.

Eh, I am fine to hold copyright as long as the author is still alive.

How does that work for companies or things made by multiple people?

Today it's life plus 70 years. My guess is they imagine someone creating a hit work then getting killed or dying in an accident, leaving their would-be-rich family destitute instead.

It's so stupid. I have a 10 year old son. If I died today, why should he have the right to try to profit from all my creative output until he's 80 years old?

I get leaving the fruits of creative work for your progeny so they can have a buffer after you die, but I strongly disagree that the period should be the length of three human generations. My work should belong to my culture and my world after a decade or so, and really, a decade after publication, not after I die.

It is not natural to treat ideas like regular property. Some degree of ownership and control is needed in a market economy, but even for the life of the creator is excessive and stupid. I can create a cultural phenomenon, but unilaterally decide that it doesn't belong to the culture until 150 years after it was popular? Total bullshit.

If you build a house, or buy land, that one will go to your kids and their grandkids. So the fruit of your head should too. 70 years is a bit too much though

I disagree. Information is not property, and should not be treated like it is. If food could be copied as trivially as ideas and data, it would be immoral to let people go hungry. If homes could be copied so trivially, it would be immoral to let people remain homeless.

Treating ideas as property to be restricted and horded is necessary to some degree in the present world to make it possible to survive from a creative pursuit, but I reject the notion that ideas naturally should be a personal possession, rather than a cultural artifact. Even so, the terms of the system should be tuned to encourage the most and best creativity possible, and allow people to support their families, with some safeguard for death so the family can get back on their feet. Anything more than 10 years is ridiculous. If I die, 10 years living on my creative output is more than enough time for my family to find stability. The idea that a company could just own and horde that work for generations is absolutely disgusting, and completely against the spirit of the system.

> How does that work for companies or things made by multiple people?

Actually, I literally don't understand how this works. How do you determine the "author" of a work created by many thousands of people?

IIRC it's mostly through work for hire contracts. So the creator is technically the corporation.

But corporations don't necessarily have finite lifespans. Can a corporation which stays in business maintain the rights to a work indefinitely? I'm pretty sure they cannot, but then I don't know what the limit is.

Yeah. This Mario game is like 50 years old now. Nintendo has already been properly rewarded for their efforts: they've turned a profit many times over. This stuff belongs in the public domain. Instead we have Nintendo DMCAing sites out of existence and selling people the exact same Mario game from the 80s over and over again with every single console they create. It's the epitome of rent seeking.

1985 is 50 years ago!

Wait... =P

38 years ago. Almost 40 years ago. Almost half a century ago. An eternity ago. It's such a bygone era that it's foggy in my mind. People who grew up playing this stuff are middle aged already, probably already parents. They'll probably die and the culture that they literally grew up with will still be owned by corporations. This is screwed up.

>the library of congress would be available as high quality digital downloads to anyone in the US at any time.

It should be noted that the primary function of the Library of Congress is, as the name suggests, to facilitate research by members of Congress and the government. The Library of Congress is not a public library.

How do you see this as relevant to the discussion?

It's true that that is the Library of Congress's official purpose. We don't have a true "National Library" like other countries have. (Whose purposes aren't actually those of what we think of as "public libraries" either). The Library of Congress ends up fulfilling many of those purposes, despite it's official mission being facilitating Congressional research. Which is kind of a messy situation.

I don't think the "National Recording Registry" has anything to do with facilitating Congressional research at all, does it?

According to wikipedia:

> The National Recording Registry is a list of sound recordings that "are culturally, historically, or aesthetically significant, and/or inform or reflect life in the United States." The registry was established by the National Recording Preservation Act of 2000,[1] which created the National Recording Preservation Board, whose members are appointed by the Librarian of Congress. The recordings preserved in the United States National Recording Registry form a registry of recordings selected yearly by the National Recording Preservation Board for preservation in the Library of Congress.

> The National Recording Preservation Act of 2000 established a national program to guard America's sound recording heritage. The Act created the National Recording Registry, The National Recording Preservation Board and a fund-raising foundation.[2] The purpose of the Registry is to maintain and preserve sound recordings and collections of sound recordings that are culturally, historically, or aesthetically significant...

So, these purposes were in fact created by Congress.... but they are different purposes than the original primary function of facilitating congressional research.

https://en.wikipedia.org/wiki/National_Recording_Registry

How does listing the song lock up our culture?

That song is a part of our shared culture and it's already locked up by copyright law. Adding it to the library of congress is nice, since works included there are preserved and are freely available to some people, but ultimately while those works are recognized as being culturally important, access to those works is still artificially restricted and so the vast majority of Americans will not benefit in any way from it's inclusion.

There are people who ultimately liberate works and ensure that they are forever preserved, regardless of the wishes of the copyright holders (some of which would like to think that they have the moral right to withhold copyrighted works from public access).

Unfortunately, those people are labeled "pirates" and demonized by the proponents of lengthy IP protection. The fact of the matter is, regardless of an individual "pirate's" motivations, piracy is preservation. The most widely preserved libraries of media and software are the ones that are the most widely pirated.

"Perhaps the most recognizable video game theme in history, Koji Kondo's main motif for the 1985 Nintendo classic, “Super Mario Bros.,” helped establish the game's legendary status and proved that the five-channel Nintendo Entertainment System (NES) sound chip was capable of vast musical complexity and creativity. The game's main theme, or “Ground Theme,” is a jaunty, Latin-influenced melody that provides the perfect accompaniment to Mario and Luigi's side scrolling hijinks. Kondo's score laid the groundwork for an entire generation of chiptune musicians and has been performed by orchestras around the globe, befitting its status as one of the most beloved musical compositions of the last 40 years."

Also added: Stairway to Heaven, What a Feeling, All I Want For Christmas and Imagine.

Which all I want for Christmas?

Two front teeth? Or You?

The You one, sung by Mariah Carey:

https://www.loc.gov/programs/national-recording-preservation...

A somewhat unique desideratum of video game music that distinguish them from film scores (especially with the limited storage in the 1980s and 90s) is that short pieces need to be played in a loop for hours and hours on end without the player getting sick of them. I think nobody has done this as well as Koji Kondo (who also did the Zelda music).

Film scores have it easy, but for games instead of just looping a tune there are dynamic scores in video games music that change moment by moment in response to the actions of the player or the current situation in the game. Even SMB did this in a way by speeding up the music as time ran out, but newer games give you multiple versions of the same themes and melodies, but in short segments with entry and exit points that can be transitioned into and out of seamlessly while still sounding natural. Games have been getting better and better at this and when it works well, it blows me away!

The song: https://tile.loc.gov/storage-services/media/recordedsound/Su...

what does this mean? As I don't live in America I don't understand. Does this mean the theme is now in Publc Domain?

No, it means it's on a list of recordings that the Library of Congress calls important. You'd think it means they also now archive a copy of the song, but that doesn't seem to be the case

Kinda neat, but completely meaningless.

Daddy Yankee’s Gasolina was also included

I wish they add Mario Kart Wii next.

Aside: I love their writeup on Stairway to Heaven. I never realised the tempo changed.

Also, "Gasolina" and "Sweet Dreams are Made of This"

The Mario theme intro may have been lifted from here:

T-Square Adventures - Sister Marian https://www.youtube.com/watch?v=-2la3MlJx3s&t=1m3s

Guile's theme, same album (from the song "Travelers"): https://www.youtube.com/watch?v=J1vwlTZ5EGQ&t=1m26s

Underworld theme intro likely taken from here:

Friendship (ft. Lee Ritenour) - Let's Not Talk About It https://www.youtube.com/watch?v=ZX5ef_KAZlY&t=14s

Mario star powerup music:

Piper - Summer Dream https://www.youtube.com/watch?v=mH5K6fm2C0I

Mario 3 water theme/Zelda Fairy theme:

Tatsuro Yamashita - Morning Glory https://www.youtube.com/watch?v=X-A1nnfJ4VY

Hammer Bros. Mario 3 theme and Dr. Mario theme seem to have taken from Lady Madonna though it is also may just be a common form: https://www.youtube.com/watch?v=OYp6QbAE6s8

Mario Galaxy theme:

Barbra Streisand - Evergreen (Love Theme from, "A Star Is Born") https://www.youtube.com/watch?v=mH0D4TANhk4

Bob-omb Battle field:

Steely Dan - Kid Charlemagne (coda) https://www.youtube.com/watch?v=jJ9Xk-VoGqo&t=3m52s

Zelda 1 dungeon music:

Deep Purple - April https://www.youtube.com/watch?v=yV8e_RkpiNA&t=2m

-- Zelda Ocarina of Time opening:

Gymnopédie No. 1 https://www.youtube.com/watch?v=S-Xm7s9eGxU https://www.youtube.com/watch?v=TC_4XE8wGa8

-- Zelda Ocarina of Time Gerudo Valley:

Heavily lifted from an anime song that was metal instead of acoustic. Link appears to have gone dead but I think it is the one mentioned in here:

https://zeldauniverse.net/forums/Thread/168079-Ocarina-of-ti...

Zelda's Lullaby:

Mort Garson - Concerto For Philodendron And Pothos (Plantasia) https://www.youtube.com/watch?v=c49Trz5Rc_A

This video goes over several of them: https://www.youtube.com/watch?v=dBNJ5cAxcQ8

I don't buy the notion that Plantasia inspired anything personally, as much as I love it. They gave it away with plants and mattresses in America, how'd it end up in Koji Kondo's hands?

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