Tobold's Blog: Copyright law is weird

Friday, January 26, 2024

Copyright law is weird

Last time I counted I was named as an inventor on 32 patents. Patent law is complicated, but relatively straightforward. I am not a lawyer, but my involvement with patent has made me understand some things. If I invent for example a machine that turns sunlight and the carbon dioxide and humidity contained in air into fuel, I'll write up the description of how that machine works and claim that idea as mine. Anybody else wanting to make another machine with the same functionality would have to use basic principles that fall outside my claimed idea. Just changing the looks of the machine, or minor technical details, wouldn't be enough to circumvent my patent.

Copyright and trademark law is infinitely more complicated. You can't copyright an idea. So if Nintendo wants to sue Pocketpair over Palworld, it isn't sufficient for them say that they have a copyright on the blue penguin-like Pokemon Piplup and the blue penguin-like Pal Pengulet in Palworld is a copyright infringement. They would have to prove "confusing similarity" or "substantial similarity". Which isn't the same as the typical person's reaction to Palworld, which is to call the Pals in the game Pokemon.

Weirdly enough, if Nintendo tomorrow launched the game Pokeworld with *exactly* the same game mechanics as Palworld, but using their Pokemon instead of Pals, Pocketpair could not sue them. You can't copyright or patent game mechanics, although some companies have tried and failed. So in the other direction, Nintendo can't sue Pocketpair for using Breath of the Wild style movement in Palworld.

Note that if I say "can't sue", I mean "won't succeed when suing". You *can* sue anybody for anything, you just won't necessarily get very far with it. In many cases a strongly worded letter from a company lawyer can already achieve the same result. Many small games on Steam have been taken down when somebody claimed that the game infringed a copyright. But that is a business decision from Valve when receiving such a letter from a lawyer. Given that right at the moment that I write this Palworld is the game with the most players currently playing it on Steam, Valve would probably not be willing to shut it down based on solely a letter.

Now Nintendo is a lot larger than Pocketpair, and could probably do immense damage to their smaller competitor by suing them, just by the legal costs alone. But Nintendo might not actually want to do that. Unless, as some people on the internet claim, Pocketpair directly stole 3D models from Nintendo and Nintendo can prove that, a lawsuit based only on outward similarity might easily backfire. A court finding that the Palworld Pals are "legally distinct" from Pokemon might open a floodgate and encourage others to rip off Nintendo stuff.

I think it is obvious that the huge success of Palworld is based on Pokemon. But that is more a business failure of Nintendo, who failed to create an open world, real-time Pokemon game. There was an unmet demand here somewhere, which Pocketpair cleverly identified and exploited. I don't think that beyond some threatening gestures Nintendo will actually do anything legally against Pocketpair. The genie is out of the bottle.

- posted by Tobold @ 9:16 AM Permanent Link

Comments:

FYI the model stealing thing has been more or less debunked as the source of that rumor, a guy on Twitter, admitted he faked his claims and edited the Pokémon models by scaling them so they would look more similar to the Palworld models. So all the drama and screenshots of Pal models overplayed over Pokemon models and having them look nearly identical was false.

The guy said he did it because Palworld promotes animal cruelty or something along those lines.

# posted by

Bigeye : 26/1/24 10:11

It literally does promote animal cruelty, always assuming you think Pals are animals. If you don't, it just promotes regular inter-species cruelty, with humans as the colonisers and aggressors, but then that's every RPG ever...

# posted by

Bhagpuss : 26/1/24 10:25

If I look at for example a page on Steam with the best selling games of 2023, I would say that over 90% of them promote cruelty in one form or another. Why shooting a pixel image of a cartoonish animal would be less acceptable than shooting a pixel image of a photorealistic human is beyond me.

# posted by

Tobold : 26/1/24 11:50

Tobold: "They would have to prove "confusing similarity" or "substantial similarity". Which isn't the same as the typical person's reaction to Palworld, which is to call the Pals in the game Pokemon."

But that is what's happening: the man on the Clapham omnibus calls them Pokemon because that's what he thinks they are.
If they looked like a plumber in red and blue with an Italian voice line, you couldn't shake the feeling that it's Mario.

Pokemon are a cultural theme to a specific age group (and their parents) whether they actively engaged in with them or not.

It's like Kingdom Hearts but without the Disney stamp of approval so they gave Mickey - sorry, Mike - pointy ears, "Sorcerer's Legacy" where the main character has a moon shaped scar on his forehead. Just because there is demand, doesn't give you permission to reinterpret intellectual property. Especially when the changes are so minor that the normal person will confuse them.

# posted by

Camo : 26/1/24 13:28

I don't think this argument holds water. Parents in the 90s and 2000s used to call every gaming console a "Nintendo" just because it was the name they knew. People often refer to things by the most popular or ubiquitous name. That in itself doesn't prove anything.

Just because something is similar doesn't mean it actually runs afoul of IP/Copyright law. I'd be willing to bet if Nitendos lawyers actually believed they have a possible IP/Copyright infringement case they would have already sent the Palworld devs some type of C&D. They were very quick to shut down the mod bringing actual Pokemon IP into Palworld so they are obviously keeping an eye on the game.

# posted by

Bigeye : 26/1/24 14:12

I guess. I could make the same argument with Pokemon though as it's essentially just cockfighting.

# posted by

Bigeye : 26/1/24 14:18

Bigeye: "Parents in the 90s and 2000s used to call every gaming console a "Nintendo" just because it was the name they knew."

Sure, parents are often further away from the topics but take a look at the header picture of this article: https://www.ign.com/articles/palworld-is-it-fair-to-call-it-a-pokemon-rip-off

While certainly cherry-picking, you need to be familiar with the specific Pokemon to spot a difference. Especially if you just glance at them.

So the big question is if these resemble the originals too much (I mean same shape, colours, "facial" expressions, etc.) or if they are an original IP. And on that note: would it be as popular, if they had used completely different models?

# posted by

Camo : 26/1/24 16:42

Tobold said: "They would have to prove "confusing similarity" or "substantial similarity". Which isn't the same as the typical person's reaction to Palworld, which is to call the Pals in the game Pokemon."

I'm confused with what you mean here. Isn't the typical person, myself included, calling the Pals in Palworld Pokemon, because of their "substantial similarity"?

# posted by

Jerwin : 30/1/24 06:13

The typical person, yourself included, would also be calling the Digimons in Digimon Pokemon. But the legal definition of "substantial similarity" is a lot stricter, which is why the Pokemon company and Nintendo never sued Digimon. Digimon are "legally distinct" from Pokemon, and I would guess that Pals are too.

# posted by

Tobold : 30/1/24 07:08

@Tobold A fair point. Many would describe Digimon as Pokemon, or at least something like Pokemon. But visually the Pals in Palworld really share strong similarities with Pokemon, much more than Digimon, which is of course why many of us are curious if Palworld will get away with it.

# posted by

Jerwin : 30/1/24 12:45