Lessons from the Palworld and Pokémon Intellectual Property Debate

The recent release of Palworld has sparked comparisons to the Pokémon franchise, with some critics accusing the game of borrowing too heavily from the beloved series. However, according to legal experts, the issue is more complex than it initially seems. Peter Lewin, a partner at Wiggin, notes that while players may feel that one game takes too much inspiration from another, this is a separate issue from whether or not intellectual property infringement has occurred. Lewin explains that the two games have similarities, but also significant differences in terms of gameplay mechanics and other elements. Nick Allan, head of interactive entertainment at Lewis Silkin, observes that the excitement surrounding the games has led to a conflation of distinct legal issues. He clarifies that intellectual property is not a single right, but rather a collection of rights that protect different elements of proprietary material, such as trademarks, copyrights, and design rights. Richard Hoeg, managing partner of The Hoeg Law firm, suggests that Palworld's creature designs are attempting to evoke the feeling of Pokémon, which is not inherently illegal. However, he notes that the line between influence and infringement is often blurry, and that the key consideration is whether the designs are 'substantially similar' in areas that can be protected. The lawyers emphasize that copyright law does not protect ideas, but rather expressions of ideas. Gameplay mechanics, such as catching monsters, are not protected by copyright, but the specific appearance of characters or objects is. Palworld's creature designs, while similar to Pokémon, are not identical, and the game's use of 'Pal Spheres' instead of Pokéballs reduces the likelihood of infringement claims. Hoeg notes that Pocketpair's primary defense would be that no design was expressly stolen, and that the feeling of Pokémon is not entitled to protection. A secondary defense could be parody or satire, arguing that the game is commenting on the absurdity of the Pokémon universe. Lewin adds that assessing whether a developer has infringed on another's copyright involves answering three questions: is the original work protected by copyright, has the alleged infringer copied a substantial part of the original work, and are there any available defenses. The lawyers agree that the legal position is nuanced and complicated, and that companies will often avoid making formal allegations until they have carried out a proper investigation. Lewin notes that a number of considerations go into deciding whether or not to pursue another party for infringement, including the legal basis, cost, jurisdictional issues, and brand reputation. Hoeg believes that there is no reason to think that Palworld infringes on Pokémon, despite the character designs being similar. He suggests that the rights holders may have elected not to pursue separate legal action due to the game's popularity and differences from the standard Pokémon title. The takeaway for developers is that creating something that resembles an established IP can be a risky move. Lewin warns that making characters or elements too similar to an established IP can lead to copyright infringement claims, while making them too different may result in a lack of recognition. Allan notes that Palworld's success comes from its combination of open-world survival action, base management, and creature capturing, which are not protectable by IP laws. He suggests that developers should focus on creating compelling game mechanics that are generally free to use, while avoiding IP assets that are easily protected by others, such as character designs. Hoeg concludes that developers should not take broad lessons on intellectual property matters from any given conflict, as each case is unique and depends on specific facts and circumstances.