The global gaming market has witnessed some spectacular growth in the past decade generating an estimated $184 billion in 2023. One of giants of the gaming industry, Nintendo, commands an estimated 59.56% of the gaming industry market. However, Palworld, a game developed by Tokyo based PocketPair has taken the gaming industry by storm, being downloaded more than 25 million times in less than a month and over 5 million times within the first few days of its releasee in January 2024. In fact, it has topped Twitch's Top 10 games for January 2024, is the most downloaded third-party game and has the 2nd highest concurrent player count ever. It may be argued that one of the most prominent factors that contributed to the rise of Palworld was its similarities with one of Nintendo's (and the worlds) biggest media franchises, Pokemon, with the Palworld being almost unanimously nicknamed as "Pokemon with guns" by the majority online.
What Is Palworld?
Palword is an open world survival game where, similar to
Pokemon, you capture and collect monsters known as 'Pals'
and involve them in battle etc. Similar to Pokemon, a core mechanic
of the game involves the player attempting to capture elemental
creatures in pocket-sized balls however Palword differs in
mechanics from Pokemon as the gameplay dynamics inter alia involve
the 'Pals' using firearms and engaging in poaching
activities thereby introducing a more violent and arguably
unethical approach to the traditional dynamics of Pokemon. In fact,
the gameplay mechanics of Palworld as a whole go far beyond
anything Pokemon has to offer as they incorporate certain elements/
features from other popular survival games.
Given the immediate and significant success of Palworld upon its
release, The Pokemon Company, Japan released a statement indicating
that it would be investigating "another company's
game" released in January 2024 for any potential copyright
infringement stating that "...We have not granted any
permission for the use of Pokémon intellectual property or
assets in that game. We intend to investigate and take appropriate
measures to address any acts that infringe on intellectual property
rights related to the Pokémon..."
Is Nintendo Likely To File A Copyright Claim Against PocketPair (Palworld)?
As more particularly detailed in our perspective in "An Analysis On Copyright In The Live Streaming Of Video Games ", video games consist of myriad of audio-visual components and user-interactive software including but not limited to characters, visual designs/ animations, landscapes, stories/ plots, audio/ music as well as software/ computer programs (which operate the game).
In the Pokemon v Palword debate, the primary concern is not the
game concept or mechanics as whole, as they are vastly different
from Pokemon, but is the similarity of the characters (designs and
3D models) known as 'Pals' with different Pokemon. If the
Pokemon Company (or Nintendo) were to launch an action, it would be
against certain characters that may be construed to be copies/
rip-offs of existing Pokemon.
As copyright law varies from jurisdiction to jurisdiction, the
likelihood of success of any potential legal action by Nintendo
would depend on the relevant jurisdiction in which the claim is
initiated. Illustratively, the United States of America is widely
known to adapt the infamous fair use defence which may influence
where Nintendo (or the Pokemon Company as applicable) decide to
take any action.
It is however pertinent to note that while you may copyright an expression of something such as literature or music, an idea is typically not protected by copyright. Illustratively, while the popular superhero character 'Superman' may be subject to copyright protections as a character, that does not mean you can copyright a superhero that flies, wears a cape or shoots laser beams from his eyes. A primary example of another superhero with similar powers is the main antagonist from the popular TV series "The Boys" known as 'Homelander'.
Therefore, while most people may say that some of the 'Pals' themselves look as though they were greatly inspired by some well-known Pokémon, there may be more than enough differences in total to dispute any claim that Pals are a direct copy/ rip-off. It may be concluded that while some of the ideas are quite similar, the expression of such ideas, however, is different.
While protectable expression includes elements such as artwork or design, it is not enough that a yellow lightning themed Pal named 'Grizzbolt' infringes the copyright of the popular Pokemon mascot, 'Pikachu' as they appear to use different character models and have different overall designs. An 'X' (formerly Twitter) user appears to have compared certain in-game assets of Pokemon with Palworld assets and has concluded that when scaled to the same size, the Pokemon models were very similar in "meshes, proportions, or other fundamental features".
While it is possible that Palworld utilized Pokemon assets as a baseline and edited them to create certain Pals, it is only possible to prove copyright infringement if, during court proceedings, it is shown that internal documents exist (such as internal emails or concept materials) which demonstrate that intentional copying has occurred. Therefore, to determine whether there has been any infringement, a court would need to undertake a detailed side-by-side comparison and analysis considering the similarities and dissimilarities of the characters in question.
Conclusion
Despite being coined 'Pokemon with guns', PocketPair's Chief Executive Officer Takuro Mizobe has addressed the potential issue prior to Palworlds release stating that the game has cleared its legal reviews and that they have no intention of infringing any copyright. Mizobe even mentioned that the game concept and design was not kept a secret with the first trailer of the game launching in 2021 as well as game presentations at the Tokyo Game How in 2022 and 2023 .
While Nintendo/ the Pokemon Company have not yet initiated action against PocketPair, they have issued a takedown notice against Youtuber 'Toasted Shoes' for a mod (modification) of the game Palworld wherein the player may play as the primary Pokemon protagonist, Ash Ketchum and catch Pokemon (in Palworld) as the mod directly incorporates Nintendo's copyrighted characters into the game. On January 11, 2024, Nintendo also filed a trademark opposition in the United States of America to a third-party trading card game named, "PokeZoo" indicating that Nintendo may have diverted its attention to other potential infringement of their intellectual property.
While Nintendo may still initiate an action against PockerPair for infringement in relation to particular characters (Pals), the onus (depending on the jurisdiction in which such action is initiated) to prove that copyright infringement has occurred would in most jurisdictions be on Nintendo. Should Nintendo initiate a claim and lose, it would set a dangerous precedent to other gaming companies that might feel entitled to take their inspiration from Pokemon leading to an environment of less legitimate cases of 'inspiration' from the well-known Pokemon characters.
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