Palworld, Pokémon, and copyright infringement

A game called Palworld is taking the world by storm. This title has garnered 8 million downloads on Steam in less than 6 days, it also has become the second game in Steam history to hit over 2 million concurrent players. The game is a monster-collection-base-defence-crafting mash-up, you catch creatures (named Pals) to either fight or work for you collecting materials to build items and your base, they also help you defeat other Pals with guns, or weaken them enough so that you can capture them. Everyone who plays the game seems to love it, and I’ve heard from people who’ve played it that it’s delightfully bonkers and addictive. Not my cup of tea, but I may try it after I get through Baldur’s Gate 3 (yes, I’m late to that particular party).

So players love it, and it’s selling like hotcakes, so why am I writing about it? Well, if you’re on certain corners of Twitter, your opinion of the game would be quite negative. It started with accusations of the game depicting slavery and animal cruelty (the capture and killing bit), then it got accused of using artificial intelligence to generate Pals, and then it got attacked for blatantly stealing character designs and assets from Pokémon. Agreement quickly grew on the perennially angry and outraged cesspit that is Twitter that Palworld was not good, and should be boycotted.

And yet the game continues to thrive regardless, it’s almost as if Twitter’s opinion doesn’t count, but I digress.

I can’t comment on the accusations of animal cruelty other than to point out that people should learn to distinguish between games and reality. The claims regarding AI appear to be entirely related to previous activities from developers (one of them likes AI, gasp!), and have nothing to do with the actual game, which started being developed 3 years ago, well before the current generative AI boom. There’s a pernicious tendency on Twitter to denounce anything that has even a hint of AI even without evidence, but facts never stopped a good witch-hunt. What has interested me the most have been the claims that Palworld is potentially engaged in copyright infringement. So, is it?

Right from the start, there is clearly a common element in both games, Pokémon is a game where you capture creatures using pokéballs and get them to fight for you against other trainers in a turn-based system. In Palworld there is indeed a creature-capture mechanic that uses a ball as a device, but that’s where all gameplay similarities end, the creatures fight with guns, and they also have other practical uses, you can give them instructions to perform tasks for you, and you can also use others as means of transportation.

What has raised more questions have been some of the Pals, there are now several articles that compare Pals and Pokémon, and there cannot be any doubt that there are quite a few that look very similar, although others share a passing resemblance in some elements (links here and here). The similarity is enough to continue fuelling the controversy, with people calling for Nintendo to sue Pocket Pair, the game’s developer. So, is this copyright infringement?

It depends. Yes, I know this is a lawyerly cop-out, but in this case it may quite fitting. There are quite a few things to remember here. The first is that when it comes to computer games, there’s quite a lot of copying of concepts already, you can find games that are pretty much clones of others, and the amount of cross-pollination in some genres is considerable. There’s almost never direct copying of code, so any infringement suit already has to contend with an industry that is keen on borrowing ideas from other property. And I use the word “idea” here on purpose, copyright does not protect an idea, it protects the expression of that idea, so you cannot protect the idea of first person shooters, or even the idea of monster-catching games. The second consideration is the gameplay itself, which in this case is very different, so Nintendo wouldn’t have a claim on that side, I can’t see the capture element being subject to protection alone (too much idea), and anyway Pokémon did not invent that concept, that honour goes to the 80s game Megami Tensei. And even some of the Pokémon are inspired by Japanese myths and culture, as well as having borrowed heavily from character design from games such as Dragon Quest. However, it is the character design of the Pals where Pokémon could have a stronger copyright infringement claim. The legal question will rest on just how similar are the designs, and if they cross the line into substantial similarity, it’s not only necessary that there is a resemblance between two characters, but that similarity has to be substantial.

This will be a matter for a court to decide, I can definitely see some similarities, but this will depend a lot on expert witnesses. I have seen a few threads and speculation that Palworld may have directly copied digital assets from Pokémon games, this would definitely be a considerable boost for a potential Nintendo lawsuit if proven true. I will not even begin to assess those claims, I am entirely unqualified to do so, but current speculation is futile until this gets to court, if it ever does.

Why would Nintendo not initiate legal action? I think that a suit is possible, but unlikely. Here are my reasons in a convenient bullet-point format:

• Most Twitter commentary has been based on speculation and a complete misunderstanding of copyright law, so it can be ignored entirely, the only opinion that matters is Nintendo’s.
• Palworld is not infringing trademarks, none of the Pals share a name with their Pokémon counterparts (fun fact, only the most famous Pokémon are protected by trademarks), so this will rest entirely on character copyright, which may be more difficult to prove.
• Not all Pals are similar to Pokémon, and there is a varying degree of similarity, making the case less of a slam dunk one, and more likely to be either settled or negotiated (more on that later).
• Forum matters. Most of the legal commentary has been centred on the United States, which is common online, but still drives me up the wall. Pokémon is an IP owned jointly by three Japanese companies, Creature, Game Freak, and Nintendo. Pocket Pair, the Palworld developer, is also a Japanese company. So why would they sue in US courts when all of the parties are Japanese? One could argue that Palworld is distributed by Valve (the makers of the gaming platform Steam), which is a US company, but unless Nintendo plans on also suing Valve (which makes no sense), then I just cannot see this happening. Moreover, suing anywhere else could open the suit to be dismissed under the forum non conveniens doctrine.
• Pokémon has a history of borrowing characters and concepts from earlier games, so initiating a lawsuit could shine a light on the argument that some Pokémon lack originality themselves, or that they are just generic versions of existing animals: pigeons, birds, foxes, cats, fiery lizards…
• Palworld has been in development for three years, with trailers dating back as far as two years ago. Nintendo should have seen this coming, and could have stopped it before release. Why didn’t they? Could it be that their lawyers aren’t 100% sure of success?
• Edit: Could there be a parody exception here? It would be interesting to know how Japanese law handles parodies in copyright.

So should Nintendo sit this one out? I don’t think so. Pokémon is one of the most valuable media empires in the world, and having a game that is practically being advertised by people as “Pokémon with guns” could tarnish their reputation. But then again, it may not, Pokémon will remain a strong IP regardless of what happens with Palworld. My guess is that copyright litigation is not the way to go here, why not negotiate some sort of licensing agreement with Palworld behind the scenes? Why not even embrace the new direction presented by this game? Nintendo could become a partner, and allow Pokémon to actually exist in Palworld. I would actually start playing Palworld if I could take Pikachu on a hunting expedition with guns. Give me a playable Flareon with a flame thrower. Please take my money!

Concluding

So I don’t think that anyone should be rushing to defend Nintendo on social media, they’re more than capable of taking a decision of whether or not to sue the makers of Palworld on their own. But one thing has become clear to me, Twitter’s capacity to generate angry mobs continues unabated, but it’s evident that these are powerless when it comes to the real world. Consumers are not on Twitter, and if the game is fun, they will buy it.

I’ll leave you as I’m off to buy Baldur’s Gate 3, what should I play, a sorcerer or a wizard? Decisions, decisions.

Edit: I’ve been watching quite a lot of gameplay on Youtube, and I’m increasingly convinced that Nintendo will have a difficult time in an infringement suit, the game is so much more than a Pokémon clone, I can see why it’s so addictive.