ESPORTS DISCOVERY

As Palworld Blows Up, Could Nintendo Successfully Sue the Controversial ‘Pokemon With Guns’ Game?

Palworld is pretty much the hottest game in the world, with an incredible eight million copies sold just six days after going on sale on Steam and Xbox. But it is also one of the most controversial video games of recent times — and that’s because quite a lot of the internet reckons its Pals look a lot like Pokemon.

Developments are fast-moving and dramatic. Developer Pocketpair has said its staff have received death threats amid these Pokémon “rip-off” claims, which it has denied. Nintendo has moved quickly to remove an eye-catching Pokémon mod too.

Then, this week, The Pokemon Company issued a statement, saying: “We intend to investigate and take appropriate measures to address any acts that infringe on intellectual property rights related to Pokémon.”

That’s not confirmation that Nintendo, which exclusively publishes Pokemon video games, or The Pokemon Company intends to launch a lawsuit against Pocketpair, but ever since Palworld came out observers have wondered whether Nintendo will take legal action.

What is the likelihood of Nintendo taking on Palworld in court? And if it does decide to bring a case, what’s the likelihood of success? If Nintendo wins, could Palworld be hauled offline? IGN spoke with copyright lawyers to find out what might happen next.

Peter Lewin, video game lawyer at Wiggin, said much would depend on which country Nintendo pursued legal action in, given the differences in IP laws across the globe. The U.S., for example, has a “notoriously permissive” fair use defense, which may influence where Nintendo sues Pocketpair, if it decides to sue at all.

But generally, copyright infringement cases ask three questions: is the original work actually protected by copyright; has the alleged infringer copied a substantial part of the original work; and are there any available defences (for example parody or fair use/dealing)?

“On the first point, it’s worth noting that ideas generally aren’t protected by copyright, but the particular expression of an idea can be,” Lewin told IGN. “So one company can’t stop another from making a game about catching and battling monsters. However, if a company copies important aspects of how exactly another company expresses that game concept (characters, story beats, names etc), that’s where issues can arise. In this instance, the main focus seems to be on the Pal designs and 3D models, rather than the game concept as a whole.”

Sam Castree, a copyright lawyer and avid Pokémon player, said it’s safe to assume The Pokémon Company, or Game Freak, or Nintendo owns the relevant works, and so the copyrights are valid. But is there direct evidence of copying?

It all comes down to similarity, Castree told IGN. Protectable expression might include things like artwork, well-developed characters or settings, and fleshed-out lore. “So, it’s not enough to have a fire-elemental dragon in the game,” Castree said. “That dragon would need to closely mimic Charizard’s design, or be described with an amalgamation of the various Pokédex entries, or something like that.”

Let’s say Nintendo does take legal action against Pocketpair. What happens next? According to Lewin, the onus is usually on the copyright owner to prove that copying occurred, but in some legal systems this burden can actually shift to the defendant to prove that they didn’t copy the work.

And how might Pocketpair react to a lawsuit? Could it be forced to pull Palworld from sale? This seems an unlikely last resort, according to Castree, because of the huge sales numbers.

“They might change the game to alter or cut out the Pals that are seen as problematic,” Castree continued. “They might try to negotiate some kind of settlement or licensing arrangement. Or, they might be defiant and choose to fight the lawsuit. In that case, the first step would probably be to counter by filing a motion to dismiss the lawsuit, saying that the relevant Pals aren’t similar enough to the relevant Pokémon.”

It’s worth noting that litigation is extremely resource intensive and expensive, so even if a case is brought, it might be settled before it gets too far. Disclosure could see Pocketpair ordered by a court to make available to Nintendo documents that are relevant to the dispute, such as internal emails and game concept materials. “Naturally if internal documents exist which suggest that intentional copying has occurred, knowing these might be revealed during the process may encourage a party to try and find an early and more discreet resolution,” Lewin said.

“Even massive corporations have technically finite legal budgets and manpower,” Castree added. And companies can be nervous about “getting burned” by bad precedents they may end up setting for themselves. For example, if a judge decides there is no infringement, that may create a blueprint for other companies to follow.

“Sometimes, it can pay to bide one’s time in an effort to protect the longer-term legal position,” Castree said. “There are also non-legal issues to consider, like a potential public-relations uproar. I don’t know how much that would play into the specific case, though, given some of the outrage from people who are already convinced that Palworld is a Pokémon rip-off.”

There are also non-legal issues to consider, like a potential public-relations uproar.

Thinking further ahead, let’s say Nintendo brings a case and wins. What might such a win achieve? Money damages would be an obvious component of any victory, of course, and they could be substantial given how successful Palworld has become. Castree says there’s also the potential for a court order that blocks Pocketpair from selling the game. All these scenarios are theoretical because, as it stands, there is no lawsuit.

But as the world watches Palworld grow ever more popular, selling a million more copies as each day rolls by, the question on everyone’s lips is: will Nintendo sue? In short, is there likely any case to be found here?

Castree cast doubt on the likelihood of a lawsuit: “I think that a lot of the alleged similarities are too trivial to withstand serious scrutiny. Everyone is allowed to have a hedgehog-like monster or a deer-like monster in their games, and their mere presence does not infringe on Shaymin or Xerneas. A plant-themed monkey is not a rip-off of Pansage merely because it is a plant-themed monkey. The abstract idea of a grass monkey is uncopyrightable, and the designs themselves look nothing alike.

“I’ve seen some people complaining about Xatu being ripped off, but that’s merely because Xatu and this particular Pal are both birds with vaguely Mesoamerican designs. But they aren’t the same bird with the same Mesoamerican designs. All in all, the vast majority of the alleged copycats don’t amount to much in the legal sense.

“But then there are some that really are rather blatant. To name a few, I’ve seen one Pal that is absolutely just Eevee’s head on a fluffy, cloud-like body. There’s no other way to describe or explain it. There’s one that I outright mistook for Leafeon in some pictures, although I see from other angles that it has more of a squirrel body. There’s another that looks an awful lot like Lucario. Even if it’s just a handful of Pals that legitimately infringe on Pokémon copyrights, that’s still copyright infringement.”

Even if it’s just a handful of Pals that legitimately infringe on Pokémon copyrights, that’s still copyright infringement.

Castree said that some of the Pals in Palworld could be used by Nintendo to show likelihood of success as part of a preliminary injunction to temporarily block sales while a lawsuit is ongoing. However, a judge may be hesitant to bar sales of Palworld over a handful of infringing Pals out of over 100 total, Castree added.

“That could be unfair both to Pocketpair and to the consuming public who have a legitimate interest in accessing the non-infringing content. An injunction isn’t impossible, but it might be a hard sell to the wrong judge. But if a court does issue a preliminary injunction, then Pocketpair will almost certainly settle very quickly. At that point, they would want to minimize their own losses as fast as possible.”

For now, Palworld appears safe. But as we’ve already seen, a lot can happen in the world of video games in just a few days. The Poké Ball is in Nintendo’s court.

Wesley is the UK News Editor for IGN. Find him on Twitter at @wyp100. You can reach Wesley at wesley_yinpoole@ign.com or confidentially at wyp100@proton.me.

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Author: Wesley Yin-Poole