No, Mario and Luigi are Not Public Domain

As a passionate gamer and creator myself, I get asked often – are Mario and Luigi in the public domain? Can I use them freely in videos, games, or merch?

The short answer is no. Mario and Luigi are very much still under Nintendo‘s copyright, projected to last until at least 2080. Any commercial use requires licensing from Nintendo.

But as a character who defined my childhood, I wanted to dig deeper into explaining exactly why Mario isn‘t public domain yet. Grab your power-up mushroom and 1-up sound effect, gamers – let‘s explore this trademark plumber‘s legal status!

Nintendo‘s Iron Copyright Grip

Mario first swung his fist in the original Donkey Kong arcade game in 1981. But it was 1985‘s iconic Super Mario Bros that cemented him as Nintendo‘s flagship character.

After 37 years, you‘d expect Mario to start slipping into the public domain soon. But Nintendo has fought hard to keep him locked up.

How Long Do Nintendo‘s Copyrights Last?

For corporate copyright owners like Nintendo, terms last for whichever is shorter:

• 120 years from creation
• 95 years from publication

So with the 1985 Super Mario Bros release, Nintendo owns Mario‘s copyright until 2080 minimum. I‘ll be a senior citizen by then!

Luckily as a gaming company, Nintendo knows how to grind out long quests for profit. Just look at their vicious defense of Mario over the decades:

• Filed hundreds of trademark applications for Mario, Zelda, Pokémon etc to preserve rights
• Sued cafe owner Mario Ponce in 2021 for using his actual birth name
• Issued $12 million lawsuit against ROM site RomUniverse in 2019

This is not a company letting their mascot enter the public domain anytime soon!

What About Luigi Though?

Luigi debuted alongside his brother in 1985‘s Super Mario Bros, so he falls under the exact same copyright term. With how fiercely Nintendo guards Mario‘s rights, they aren‘t letting his lanky partner slip away into public use either.

However, I found an ingenious case where Microsoft "acquired" Luigi as an April Fool‘s joke in 2022 – announcing the terrified plumber would star in Halo. Reminded me of the creativity fans have to tap dance around strict copyright!

Could Mario Ever Become Public Domain?

Copyright does eventually expire – so could Mario slip out of Nintendo‘s clutches one day?

Their earliest copyrights apply from 1981-1985, and are set to expire between 2076-2080. At that point, early Mario arcade/NES games would enter public domain.

However, each new Mario release gets its own fresh copyright term. So Nintendo will likely continue pumping out New Super Mario games every decade or two, keeping the modern Mario under ironclad ownership.

We won‘t ever see Mario available freely for commercial use without Nintendo‘s blessing. Their developers will be coding Super Mario 128 in the nursing home to prevent that!

What About Fan Works and Content Creation?

As gamers and creators ourselves though, what freedom do we have to feature Mario in videos or make fan art? Can we profit from those?

This is where things get tricky. Technically any Mario usage could be DMCA struck, but fandom customs have emerged:

Fan Art and Non-Commercial Use

Over the years, Nintendo has mostly turned a blind eye to non-commercial fan art and content featuring Mario. They seem to recognize it actually benefits their brand.

You see tons of fan animations, comics, and art buoying Mario fandom every day on social media. Nintendo generally lets these coexist as free promotion of their mascot. It builds his cult appeal immensely.

However, to avoid attracting the legal Piranha Plants:

• Ensure your fan works stay non-commercial – don‘t directly sell Mario art prints or crowdfund Kamiko/Mario dating sims!
• Don‘t depicting Mario in overly sexual, violent, or controversial scenarios that could prompt protective actions

Basically, Nintendo allows Mario fan works thriving in the grey area of unofficial tolerance – until they suddenly don‘t.

Commercial Use and Monetization

Nintendo comes down much harder on using Mario commercially without permission via their Creator‘s Program.

• Getting 16 million views on your Mario fan animation won‘t raise eyebrows.
• But trying to put ads on that animation and profit from Mario will summon Nintendo‘s vicious lawyers.

The vast majority of Mario monetization claims come from small creators thinking they slipped through the cracks. But Nintendo drops the legal hammer eventually.

I also advise not counting on judges siding with insignificant "fair use" defenses for Mario. Unlike parody exceptions for commentary/criticism protected under fair use, commercial usage almost always requires licensing.

And based on the aggressive, deep-pocketed defense from Nintendo we‘ve seen? You won‘t enjoy your time dueling them in court over Mario rights.

What About Game Emulators and ROMs?

Emulation is another legal grey zone for gaming that I get frequent questions on as well.

Emulators = Legal

Downloading/using game console emulators is perfectly legal under current laws. Platforms like RetroArch and OpenEmu emulate systems like the SNES without actually copying copyrighted code.

However, emulators only provide the computational environment to play games. The actual releases are still protected.

So where do retro gamers get the thousands of ROMs (digital game copies) to play on those emulators?

ROM Downloads = Illegal

The video game ROM downloads powering most emulators fall into illegal distribution. Posting or downloading files online of games you don‘t personally own is copyright infringement.

Nintendo, Sony, and others can‘t fully stop casual ROM trading. But they do issue major lawsuits against sites hosting libraries of downloads. Two major ROM sites and their owners below faced seven-figure damages:

• LoveROMs and LoveRETRO – $12 million
• RomUniverse – $2.1 million

Does anyone actually get prosecuted for casually downloading Super Mario World or Zelda: Link to the Past ROMs? Very rarely.

But legal risks still exist. For true retro enthusiasts, I recommend ripping your own game cartridges or discs to create ROMs safely without distributing copyrighted code online illegally.

The Heart of a Gamer Can‘t Be Bound by Mere Copyright!

So in summary – Mario and Luigi remain firmly locked within Nintendo‘s franchise dungeon until approximately 2080 based on copyright terms. They aren‘t entering the public domain any time soon.

Nintendo allows Mario fan works and tributes to thrive alongside their official releases. But commercial usage is nearly impossible without licensing. And distributing game ROMs online always carries some legal risks as well.

While that prevents us gamers and creators from going wild with our favorite mascot freely, it ensures Nintendo can keep cranking out incredible Mario experiences for decades to come. That treasured franchise would never feel as polished or magical without their careful guardianship.

And who knows? If the Mushroom Kingdom ever actually available for public domain exploitation, things could take a dark turn. I‘d weep if Mario became another Mickey Mouse blasted across cheap products everywhere instead of Nintendo‘s crown jewel.

For now, take solace fellow gamers in premium titles like Super Mario Odyssey and the 35th Anniversary celebration. Our heroic plumber‘s adventures will never end as long as we keep supporting Nintendo‘s unmatched craft. Now if you‘ll excuse me, I‘m craving a Mario-themed Power-Up Energy Drink from my local bodega. I‘ll be following in Mario‘s footsteps bouncing off the walls all night thanks to that sweet, sweet blue shell extract…

Let me know your thoughts in the comments below! Do you have any hot Mario copyright takes or questions? I‘m always down for a spirited debate over legal loopholes before we race go karts. Ciao for now!