The majority of your arguments have a few problems, both for and against the positions you stated, but yes... I doubt Nintendo would find it worth their time or effort unless you sell one boatload of guides. Your point about the guide websites, while those are typically fan-based guides... the majority of which do not even host screen shots (rather the links to imageshack, which are removed quite often).
I definitely applaud the guide makers though. I love fan-based guides that show both significant amounts of effort and thought... which is why I would purchase your guide before I'd purchase 99% of the current commercially produced guides.
I would like to point out some flaws with your bulletpoints, though.... if anything to just help you by strengthening some of your arguments
- Since its a Japanese game, NCL -- not NoA -- would probably have to pursue this case, and we're pretty sure they don't care; there's a huge market for unofficial/fanmade players guides in Japan
Yes, but the Japanese market/govt does not provide the same level of protection that is afforded here. NoA could pursue this case as a subsidiary of NCL... which is why the American market is so attractive for new software developers and artists.
- The only copyrighted materials we're using are screenshots and short translations (a few sentences here and there), and those are for the purpose of guiding and educating the players. We feel this is defensible under fair use principles.
Actually translations are notoriously hard to reach through copyrighted materials... especially given the subtleties and differences in translations on a person-to-person basis. Screenshots are not as hard to reach, but a bigger problem exists if a ROM was used to capture the screenshot... since the underlying method of retrieving the photo was illegal.
- We created our own artwork and design -- there are no official logos, no official art, nothing of the sort. Everything is 'homebrewed' by our team of artists, writers, and designers.
The only problem that I can really see arising from it, in terms of no logos, is the use of logo on the front of the manual. Although it is not identical, it can reasonably be thought that the logo on the front of manual could lead a reasonable person to confuse the Earthbound logo with that one... which I assume they have a proper trademark filed for that.
- There is no effect upon MOTHER 3’s market value (or Nintendo's profits) because the game was never deemed valuable enough to localize and release in the first place. Nintendo needs a reason to bring a lawsuit against us, and without a product in the marketplace, their argument would be very weak.
No effect on the Nintendo's profits is a bit misleading. Although it has not been released in the US, the readily available Wii Virtual Console has brought several games that were previously Japanese only. It may not mess with their current profits, but it could prove problematic for future profits by providing an incentive to purchase the guide and download a rom, rather than the future VC release.
- We actually tried to get licensed for this guide. After weeks of calls, emails, research, unreturned messages and dead ends, we threw our hands in the air and said "screw it! we're flying unlicensed!" We'd be glad -- thrilled, actually -- to talk to Nintendo about licensing the guide in the same way we're hoping to negotiate to get the Fangamer Store licensed.
Sadly, it is Nintendo's prerogative who to allow or disallow a license. In the event of silence, that should be construed as a decline. The argument that there were unreturned messages did not bode well for the Harry Potter Lexicon.
- We are little fish, and Nintendo is dealing with some very big, very nasty fish right now. The hardware patent suits they're facing could cost them billions of dollars, and as such I don't think they're going to waste their time, money, or PR karma by squashing a bunch of their nerd friends ;D
Agreed, Nintendo has some major IP issues currently... but don't be fooled. They have plenty of time given the SoL... As dumb as this sounds, I would notify them that you are currently producing this manual.. that way they have actual notice ... rather than merely a constructive notice.