Analysis: There are several aspects to consider when looking at the case of similar yet legally distinctive and separate video games
By Liam Sunner, Queen's University Belfast
Following an incredible launch for its early access/beta release, Palworld has been the subject of numerous articles and posts on social media which claim the game makers have ripped off Pokémon. Many such posts talk broadly about how the latest game from Pocket Pair infringed the intellectual property of the Pokemon Company and Nintendo, but don’t often go into detail about what is meant by infringement or intellectual property.
There are several aspects to consider here. The first is what is meant by intellectual property. In a nutshell, this is about protecting the expression of the idea. Here, it's the overall game, design and characters of Pokémon. It's not the game idea (catch them all), the genre (RPG, Survival, and Monster Training), the core mechanics (battle until the opponent is KO’d), or the character core concepts (it’s an electric mouse but yellow).
Trailer for Palworld
Rather, it’s the expression of how these elements are combined together to make it a game about exploring a region to catch all the Pokémon through trade or battle with Pikachu. That is Pokémon and that is what can be protected.
In doing so, the Pokémon Company and Nintendo have a number of avenues to protect their IP. Depending on the jurisdiction in question, there will be some variations on the precise methods and requirements, but their rights would be protected under:
Copyright law: protection on the artistic expression of the idea such as the character design, narrative, music, and overall game design.
Trademark law: the name, the logo, and to some degree the images of key characters for merchandising and branding.
Patent law: the innovative and technological steps such as the game engine and various technological or programming aspects
From IGN, is it fair to call Palworld a Pokémon ripoff?
The second aspect is the infringement itself: did Palworld copy Pokémon - and if so, to what degree? To address this claim, we must look at where the infringement could occur. As noted above, the elements that make Pokémon a Pokémon game can be protected, but the core idea of the game can’t be.
This appears to be what may be occurring here. Palworld draws from the same broad concept but doesn’t draw directly on making a cut and copy of the Pokémon games. This is evidence from the other influences that can be attributed to the game, such as broader base construction elements, multiplayer options and roaming events. These are found in a wide number of games such as Breath of the Wind, Fortnite, Ark and many other modern best sellers.
A question does surround the use of the tagline ‘Pokémon with guns’ in relation to Palword. While accurate as an offhand description of the game, there is a question of where this phrase originated. As it appears to have been generated in the context of discussion and reviews rather than by the developers themselves, different jurisdictions may allow or permit this use as a form of discussion and comparative advertising. This would depend on the strength of the claim and how close the phrase is being used, but there is precedent for this being allowed to be included in the marketing.
This will be a contentious test on the limits of how far an 'influence' in videogames can go
What about the design of the Pals versus the design of established Pokémon? This presents a further series of issues where the work was done by a human artist or through the use of generative AI or some combination. For human artists, the use of Pokémon designs would be a significant influence on the overall Pal design, but not infringement in and of itself. However, the question of influence versus infringement has been subject to some questionable decisions, and the lines have blurred on the matter.
If the Pals were designed using generative AI, or in part generated through AI, there would be a higher risk of infringement or direct copying. This us due to how the generative AI programs were trained on existing work, which in this instance would predominately be Pokémon designs. This is an issue as the CEO of Pocket Pair has been a strong proponent of the use of AI work in the past but, at time of writing, nothing has suggested the Pal design has been by AI.
This will be a contentious test on the limits of how far an 'influence' in videogames can go, where they are not claiming the protection for parody or licenses and permitted use. While not an admission of a claim, the Pokémon company has stated they will be investigating the matter to ensure the protection of their IP concerning Palworld, going as far as having a modification for the game removed, where the fan-made mod reskinned the Palworld game to show Pokémon.
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Dr Liam Sunner is a lecturer in the School of Law at Queen's University Belfast
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