It is sometimes said that there is a fine line between taking inspiration from another’s work and infringement of intellectual property rights. The remarkable success of a recently released video game has brought some attention to the question of where this line falls in the light of significant similarities it shares with other successful games. This attention comes not least from the publisher of one of those successful games, Pokémon – the world's biggest media franchise.
The Pokémon Company ("PokémonCo") recently released a statement indicating that it would be investigating “another company's game”, released in January 2024, for potential infringement of its intellectual property rights. Although the press release does not mention the game by name, there is an overwhelming consensus that the game in question is PocketPair's Palworld, the biggest video game release of 2024 so far.
Palworld, nicknamed “Pokémon with guns”, is an action-adventure, survival, and monster-taming game, which has been making almost daily headline news in the industry since its release. Why has this game attracted so much attention?
- Popularity: Most importantly, Palworld is the first hugely successful video game of 2024 and is one of the biggest game releases ever. Reports indicate that it sold over 8 million copies in its first week of release and reached over 2 million concurrent players on Steam, making it the second-highest played game of all time on that platform. It's fair to say this success was not predicted prior to its release.
- AI: There have been claims that PocketPair used AI to create Palworld's characters, referred to as “Pals”. These claims have not been confirmed by Palworld's developers and appear to arise from speculation based on PocketPair’s previously declared interest in the use of AI in developing games. In addition PocketPair previously released a game with AI central to its concept: “AI: Art Imposter”. The reason this is news at all is that the use of AI in video games has been under some scrutiny recently with many gamers concerned about the impact it will have on creativity in the industry and job security of human developers. The latter is not an unwarranted concern given layoffs in the video games sector has been unfortunately regular news for the past year.
- In-game Pal cruelty and slave labour: One key element of Palworld involves setting up a base where you can recruit Pals on a factory assembly line to work and complete certain production tasks such as farming, chopping wood, mining stone, etc so that you have a constant supply of materials to play other elements of the game. The player can set how hard they demand the Pals work, including “cruel” or “brutal” workloads, which impacts the worker-Pals' hunger and sanity levels. A number of reviews have raised concerns about the morality of this game mechanic to the point where a PETA-supported Ultimate Vegan Palworld Guide has been published. Rather than shying away from these concerns, PocketPair plays into this aspect of its game, for example by having Pals with attributes such as “Work Slave”.
Intellectual property and derivative works
So on to the legal question: is there a claim against PocketPair for “acts that infringe on intellectual property rights related to… Pokémon” and, if so, in what respects might PocketPair be particularly vulnerable? As with our previous article discussing Epic Games' Fortnite Impostors and Innersloth's Among Us, let's consider the potential IP rights at play.
For all the same reasons given in the Impostors/Among Us piece, in the UK and EU it is very unlikely that patent law could be of relevance here. Video games are difficult to protect through patents, as they require a further technical effect beyond the interaction between program and computer. We are not aware that PokémonCo owns any such patent that it could assert has been infringed by PocketPair. Patents can therefore quickly be dismissed as a likely IP candidate.
Trade marks and passing off
As with patents, trade marks are unlikely to assist here. PocketPair does not use any of the Pokémon marks (there are many in the Nintendo family of Poké-brands - a quick search for Pokémon in the UK IPO trade mark register brings back over 70 results), nor does Palworld use similar branding, including names or logos, to Pokémon.
Further, it is unlikely that PokémonCo would be successful in a claim for “passing off”, i.e. a claim that PocketPair was misleading the public to believe that Palworld is in fact a Pokémon game causing damage to PokémonCo. Despite the “Pokémon with guns” nickname, which is not a description which has been used by PocketPair to market their game, there does not appear to be much, if any, confusion in the marketplace and there has been no marketing or other representations made by PocketPair to incite confusion; both of these would be essential ingredients for a successful passing off claim.
Design rights are often overlooked when it comes to the protection of video games assets. The aesthetic appearance of in-game assets could be protected, whether by registered or unregistered designs, if the design is new and has individual character, i.e. it must be sufficiently different to other previous designs disclosed anywhere in the world.
If PokémonCo has registered any in-game assets as designs, it would have a strong case for protection but it may also be able to rely on unregistered design rights in any event. In either case, once the design has been established as subsisting and protected it would be necessary to show that PocketPair's Palworld designs do not produce a different overall impression on the informed user compared to the Pokémon designs. However, the biggest hurdle for PokémonCo is time. In the UK and EU, registered designs are protected for 25 years and unregistered rights for 10 to 15 years. The first Pokémon games were released for Gameboy in Japan in 1996 and any designs disclosed in those original games would no longer be protected in the UK or EU.
As is often the case with intellectual property claims in this industry, copyright is the most probable candidate.
It is unlikely that PocketPair would contend that Palworld does not take concepts or ideas from the Pokémon games - a core mechanic of Palworld is the player attempting to catch elemental creatures in a pocket-sized ball; anyone who has played Pokémon will be immediately familiar. However, it is an essential principle of copyright law that it does not function to protect ideas or concepts, only specific and particular expressions of them. If PokémonCo was to bring a copyright claim, it would have to look more closely at the expression of the game elements complained of in Palworld.
An X user, Byo, appears to have done some of this work for PokémonCo and has caused a bit of a stir online with fans of Pokémon. As detailed in this article, Byo compared certain Pokémon in-game assets with Palworld assets and found that, when scaled to the same size, the Pokémon models were very similar in “meshes, proportions, or other fundamental features”. Questions arose as to whether PocketPair could have actually used Pokémon assets as a baseline design and then edited them to come to its own creature designs. Further to this, there are other elements of the Pals that appear to be similar to Pokémon assets, e.g. the yellow lightning-themed Pal named Grizzbolt certainly has characteristics of a pretty well-known Pokémon but does not appear to use the same character model or have a similar overall design at all.
So is there a realistic prospect of a copyright claim here? In short, and apologies for the typical legal answer, it depends.
The test for copyright infringement in the UK is whether the whole or a substantial part of the copyright work in question has been copied, either directly or indirectly. Modern EU case law frames the test in respect of copying of a substantial part differently: asking whether there has been copying of “elements which reproduce the expression of the author's intellectual creation”. Both tests require consideration of (i) the quality of the originality in the elements of the original work, and (ii) whether those elements have been substantially copied. Ultimately, the answer under EU and UK law is often the same and English case law appears to confirm that the tests are not significantly different. It is important to note that under both tests, the focus is on the copying of the quality of the originality in the work, not one of the quantity that has been copied.
In this case, none of the Pals or other in-game assets are identical copies of Pokémon assets so there is no claim for copying of the whole of the copyright work [side note: Nintendo/PokémonCo has submitted a successful takedown request for a YouTube video advertising a Palworld mod (see here), created by YouTuber Toasted Shoes, which turned Palworld assets directly into Pokémon assets; this helpfully represents a much clearer case of direct, whole copyright infringement and it is no surprise immediate action was taken]. Therefore, the question is whether the Pals, and any other Palworld assets, constitute copies of a substantial part of the Pokémon copyright works or elements which reproduce the expression of the author's intellectual creation?
The first part of the test is have the works been copied? To answer this question a thorough factual investigation would be required. Failing any evidence of direct copying, a court would undertake a detailed side-by-side analysis of the relevant works in question, considering both similarities and differences on a qualitative basis, to infer whether copying had occurred - an inference which a defendant would undoubtedly attempt to rebut.
Assuming that the first hurdle is cleared and a court found that PocketPair did copy certain elements of Pokémon, it will then assess the copied features and ask the questions set out above: do those features form a substantial part of the original work (or elements expressing the author's intellectual creation, under the EU test)?
Focusing on Pikachu as an example: would copying the base model (a mouse shape) amount to copying “a substantial part” or “elements expressing the author's intellectual creation” in the originality of the artistic work that is Pikachu? Or would copying just the yellow colour and lightning elements alone infringe? The answers are not straightforward and that is probably why PokémonCo is not rushing to bring a claim.
The questions can also be applied to the games as a whole to consider whether across all of the artistic (and other) works in Palworld, there has been enough copying to amount to a ”substantial part" of the game or “elements expressing the author's intellectual creation”.
Games copy games… all the time. There are other “Pokémon clones” out there, as well as a rise of other games based on prior concepts - see the many "souls-like" games released recently. However, in this instance, the most likely cause of the investigations may arise from the combination of the negative press, the extreme popularity of Palworld and the “Pokémon with guns” sentiment. However, PokémonCo cannot take those factors into account when assessing whether it has a real claim for IP infringement.
Pokémon is also not alone. Palworld appears to have taken ideas and elements from many different games, including ARK: Survival Evolved, Conan Exiles and Valheim to name a few. As this Game Rant article notes, there are Elden Ring references, Easter eggs and game elements scattered all throughout Palword. However, PocketPair's CEO, Takuro Mizobe, seems unconcerned and has stated in an interview with Japanese gaming outlet, Automaton Media: "We make our games very seriously, and we have absolutely no intention of infringing upon the intellectual property of other companies.”
Will PokémonCo bring an IP claim against Palworld? Time will tell, but copyright claims for copying of parts of original works are complicated, and success is never a guarantee. PokémonCo will be weighing up a number of commercial considerations too - what are the prospects of success? Is it worth the cost of large-scale international IP litigation? Is Palworld causing damage to the reputation of Pokémon or its game sales? Is there a risk of a negative finding in a judgment about the validity of any IP rights in Pokémon?
While we speculate, PokémonCo and Nintendo appear to be focusing their attention elsewhere. On 11 January, they filed a trade mark opposition in the US to a trading card game, “PokéZoo”. Maybe that was the January release they were investigating after all.