Gotta catch 'em all?

The recent release of Palworld, an open world survival game dubbed by the internet as “Pokémon with guns”, saw the game break several sales records on Steam and capture the attention of the public. Like Pokémon, Palworld asks players to capture creatures using thrown spheres, to train and battle with their “Pals”. As well as sharing certain gameplay mechanics, it has been suggested by a flood of side-by-side comparisons online that some of the “Pal” designs bear more than a passing resemblance to certain Pokémon. 

When asked about Palworld at a recent Q&A, the Nintendo president Shuntaro Furukawa stated: “We will take appropriate action against those that infringe our intellectual property rights.” But is Palworld actually doing anything wrong? 

Nintendo's intellectual property in the Pokémon series is protected via various rights, including patents, trade marks, designs and copyright. In particular, copyright law protects original works of authorship, including characters, designs, and creative expressions. While it's common for games to draw inspiration from earlier works, there is a fine line between inspiration and infringement. Under copyright law, there may be infringement if the accused work has copied a "substantial part" from the original work. There is no absolute definition of what constitutes “substantial”, but it is clear that the test is qualitative, not quantitative. Importantly, a work does not have to be an exact replica of the original to be infringing. 

So is Palworld infringing Pokémon's earlier copyright? 

Though some of the gameplay elements from Pokémon can be found in Palworld, these are not typically protectable under the legal framework. For example, capturing creatures by throwing a ball at them is not likely to be a mechanic that Pokémon could monopolise, if the overall animation and the ball itself looks visually distinct. 

On the other hand, if, for example, a “substantial part” of the artistic designs of characters or objects in Palworld is found to be copied from original Pokémon designs then there may be infringement. Nintendo may argue this point; the similarities between the designs of Direhowl (Palworld) and Lycanroc (Pokémon), and Boltmane (Palworld) and shiny Luxray (Pokémon) are particularly hard to ignore. The rumoured re-design of Boltmane before it is released in the game may suggest Pocket Pair (the developers of Palworld) acknowledge they stepped too close to the line in this case. 

Nintendo have not yet issued any legal proceedings but it will be interesting to see how this develops. Though there have been other successful Pokémon-like games in the past, Nintendo may want to take a hard stance to dissuade others from trying to replicate the success of Palworld by riding off of Pokémon's coattails.