30 September 2024
On 19 September 2024, Nintendo published a notice on their website that they, together with The Pokémon Company, are suing Pocketpair, Inc., the creators of Palworld.[1] This is not an unexpected development: Palworld has made waves throughout the gaming community since its release in January 2024, most notably for its similarity to the Pokémon video game.
Palworld, often also referred to as “Pokémon with guns”, is an action-adventure, survival, and monster-taming game. With the release of its trailer in 2021, Pokémon fans were quick to point out the similarities between the Pals – the monsters that can be caught and tamed in Palworld – and Pokémon.
With the release of Palworld in January 2024, many expected Nintendo and The Pokémon Company to take immediate action based on perceived copyright infringement. However, The Pokémon Company merely released a statement saying that they intend to investigate and take appropriate measures to address any acts that infringe on intellectual property rights related to Pokémon.[2]
This approach seemed strange at first: Nintendo and The Pokémon Company are both known to be fiercely litigious in protecting their intellectual property. However, upon closer inspection of Palworld, it became clear why they are careful to rush into any copyright infringement lawsuits.
While one cannot deny that the Pals share many similarities to certain Pokémon, and there are many overlapping qualities and mechanics in both games, this does not guarantee that there is copyright infringement, per se. This is largely due to a legal doctrine called the idea-expression dichotomy, which limits the scope of copyright protection by distinguishing an idea from the expression of that specific idea. While the expression can have copyright protection, one generally cannot have copyright protection in an idea.
In this regard, while Palworld follows a similar “recipe” to Pokémon (albeit with guns), the idea of a monster-catching-and-taming game is not copyright protectable (think of the co-existence of Pokémon and Digimon). Nevertheless, the expression, i.e. how the Pokémon and Pokémon world looks, would be protectable under copyright.
What makes a claim of copyright infringement based on the characters difficult, is the onerous burden of proving infringement where the alleged infringing characters are not a slavish copy of their counterparts. Certain elements for characters are considered “stock elements”, which will not be copyright protectable (for instance, a game set in a fantasy setting will inherently have fictional creatures such as dwarves, elves, wizards, etc.). Similarly, if characters are based on real-world animals, as many Pokémon are, it may be difficult to claim copyright infringement from an alleged infringer if they also use the same animals as inspiration for their characters.
With this in mind, it could be indicative as to why Nintendo and The Pokémon Company first assessed all of their options, instead of rushing into a lawsuit that could potentially be an uphill battle.
But now the final boss has emerged.
What surprised many, is the fact that Nintendo and The Pokémon Company’s lawsuit is based on patent infringement, and not copyright infringement. This could further indicate that their assessment of the alleged copyright infringement by Pocketpair, Inc. proved an uphill battle should they have relied on the copyright protection of their characters.
It is not yet clear on which patents Nintendo and The Pokémon Company are relying for their claim for patent infringement. Pocketpair, Inc. released a statement in reply to the lawsuit being filed and confirmed that they too are unaware of the specific patents they are accused of allegedly infringing.[3]
Naturally, the speculations are already flying around, with many believing that the patent in question is one which grants Nintendo protection over “game program-storing media, game systems, game apparatuses, and game processing methods that execute a process on a character in a virtual space.”[4] Essentially, Nintendo has patented the mechanic in Japan and the US to catch Pokémon (or any character) with an orb in an open-world setting. What makes this mechanic novel, is that previously characters could only be caught after engaging in battle with them.
However, Nintendo has various other patent registrations which equally could be applicable. From a legal standpoint, it would be interesting to see how this plays out in a court of law. In reality, infringement claims in the video game industry are often settled outside of court.
Pocketpair, Inc. concedes in their statement that they are a small indie game company based in Tokyo. Regardless of the merits of Nintendo and The Pokémon Company’s infringement claim, their deep pockets compared to the limited resources of Pocketpair, Inc. will more than likely mean that this is game over for Palworld as we know it.
[1] https://www.nintendo.co.jp/corporate/release/en/2024/240919.html
[2] https://corporate.pokemon.co.jp/media/news/detail/335.html
[3] https://www.pocketpair.jp/news/news16
[4] https://www.pcgamer.com/games/survival-crafting/is-nintendo-suing-the-palworld-devs-over-a-patent-on-throwing-poke-balls/
