Video games offer a melting pot of intellectual property: trademark law, copyright law, and even patent law all come together in a delicious mix of intangible property. However, not all video game franchises are equal. Few can claim the same level of longevity, success, and nostalgia as Nintendo’s Mario Brothers series.

Among the most popular titles of the franchise is Mario Kart, a game in which characters from the franchise race each other in go karts. The characters repeat catch phrases, seek out power ups (invincibility, speed, etc.) and cartoonish weapons (banana peels, turtle shells, etc.), all with the singular goal of being atop the podium at the end of race. Over its 25+ years of existence, the game has resulted in significant sales, widespread nostalgia, and, unsurprisingly, numerous attempts from others trying to make money off of the characters. But a recent lawsuit in Japan brought media exposure to what might have been the greatest attempt yet to profit off the franchise: real life go-karting in Mario Brothers costumes in the streets of Tokyo.

How fun is that? From what I can tell, riders aren’t allowed to throw things at each other (thanks a lot, safety laws), but this tour would still be great. The attraction even attracted professional race car drivers. You don’t even need to provide your own costume, they’ve got a ton for you to choose from.

Race car drivers weren’t the only people to discover the tour. Nintendo’s lawyers did, too. I’d like to imagine they participated at least once before suing them, if only under the pretense of “fact development.” Nintendo sued and ultimately prevailed on claims of copyright infringement. The company has to pay Nintendo 10 million yen (about US$89,000) and can no longer hand out Mario Brothers character costumes.

It’s hard to quibble with Nintendo’s actions here. The MariCar company intentionally distributed character costumes in order to attract customers.

But what are Mario Kart fans supposed to do now? Well, there will be an official Super Nintendo World opening at Universal Studios Japan ahead of the 2020 Tokyo Olympics. The theme park will include a Super Mario World featuring Bowser’s castle, Peach’s Castle, and, yes, a “Mario Kart attraction.”

But if you prefer the thrill of participating in likely infringing activities, you can check out the Australia-based MUSHROOM RALLY race event purportedly coming to Denver, soon. Participants will have a chance to battle it out in Las Vegas for the championship race. Ticket prices are yet to be determined and are limited to just 600 participants. I suggest you read the fine print on the refund policy though – just a hunch…

The James Bond franchise is one of the most well-known and successful movie franchises in history. There are few characters who reappear in 23 full length movies, let alone have the 23rd movie reach the top of the box office charts. The James Bond franchise, however, has obtained a unique status among average viewers and movie critics alike and the current owner of the rights to Ian Fleming’s creations, Danjaq, LLC, rightfully protects the intellectual property associated with the film. Just a few weeks ago, Danjaq played the part of Dr. No, and filed a lawsuit against Universal Studios based on Universal’s reported development of a spy movie script entitled Section 6. The script is set in the early 1900s and spotlights a British spy as the British intelligence agencies create what is to become MI-6. Universal Studios purchased the script from Aaron Berg.

Danjaq contends that, based upon the initial script as purchased, that the script infringes upon Danjaq’s rights in the James Bond movies, scripts, and characters. Danjaq goes so far as to say that the script is a “knockoff” and a “bootleg.” Although the movie (or script) has not been finalized, let alone produced, Danjaq has requested damages and a preliminary injunction to halt the pre-production of the film.

Whether a creative expression constitutes copyright infringement is a notoriously difficult inquiry. The basic test requires the court to make an objective comparison of the two works to determine whether the protectable elements of the works are substantially similar. Courts asks whether the total concept and feel of the work are substantially similar, examining the theme, setting, characters, plot, pace, time sequence, and any other relevant elements. However, copyright protection does not extend to ideas nor to basic general plot points that flow directly from a particular concept or idea. For example, the Second Circuit rejected a claim that the Jurassic Park novel infringed an earlier written children’s book series entitled Dinosaur World, reasoning that “although both works share a setting of a dinosaur zoo or adventure park, with electrified fences, automated tours, dinosaur nurseries, and uniformed works, these settings are classic scenes a faire that flow from the uncopyrightable concept of a dinosaur zoo.”

How strong is Danjaq’s case against Section 6? The complaint is heavily redacted, so it is difficult to say. A number of the claimed substantial similarities fall squarely within the scenes a faire category. The fact that the main character is a “tuxedo-clad British secret agent. . . on a mission to save England from the diabolical plot of a megalomaniacal villain” necessarily flows from the unprotectable idea of a British spy story. The use of characters such as the “head of British Intelligence,” gadget-developing scientists, the villain’s henchmen, and “young beautiful women” are also common characters. The Complaint also points out in the script, the main character introduces himself by his last name first: Duncan. Alex Duncan.

However Danjaq can take some solace (may I suggest, a quantum?) in a few specific portions of the dialogue in the allegedly infringing script. The Complaint suggests that the script uses the phrases “license to kill,” “his majesty’s secret service,” and reference to the spy as a “double-o agent.” According to Danjaq, this terminology is not based on any historical use, instead, they claim, Ian Flemming originated each of the phrases.

After taking out all of the unprotectable expression, are these similarities sufficient to support a finding of “substantial similarity?” It’s certainly possible, depending upon how the movie portrays them. Yet if the claimed infringement is merely the original Section 6 script, it seems highly unlikely. Perhaps if the phrases referenced above are used prominently and repeatedly throughout the script, in a manner that makes them integral to the story, then perhaps. However based on the redacted complaint, the scripts share little more than many of the other spy novels, movies, and television shows, from The Bourne Identity and Red, to Tinker, Tailor, Soldier, Spy and Get Smart. Each of these put their own unique spin on the traditional spy story. Section 6 is described as telling the story of the development of MI-6, set in the early 1900s between the two World Wars. The setting and plot are likely to depart dramatically from the cold war stories of the James Bond franchise.

There are likely numerous other spy movies and novels that include a number of the same elements. Feel free to prove your status as a movie/novel buff by posting the most similar non-James Bond spy story in the comments. Or you could post your own opinion as to whether Danjaq has a case for substantial similarity between the works. Personally, unless there is something else in the redacted portions which were for the court’s eyes only, I think Danjaq is reaching. Over Reaching.