(Image via ign.com)

Staff Writer: Jesse Magnifico

Email: jmagnifico@umassd.edu

Palworld is receiving a lot of traction and controversy over potential copyright infringement.

The open-world survival crafting game takes a unique spin on the genre, where players can “Fight, farm, build and work alongside mysterious creatures called ‘Pals.’” The game, developed by Pocketpair, was released for early access on January 19th, 2024, and has already sold 12 million copies on Steam.

The issue stems from an ambiguous announcement from The Pokemon Company and Palworld modders adding Pokemon models to the game, much to Nintendo’s dismay. 

Without naming Palworld outright, The Pokemon Company’s message reads loud and clear about who they want to wage an infringement case with — or so it seems.

The creatures of Palworld called Pals resemble Game Freak’s/Nintendo’s long-established pocket monster creatures, which is why the community has dubbed the game “Pokemon with guns.” Undoubtedly, the developer has drawn inspiration from the popular title, and there’s nothing wrong with that. As W. C. Williams says, “No ideas but in things.” 

It appears Palworld is under investigation, but that is not the case. As of January 11th, a lawsuit has been filed against a trading card and phone game called PokeZoo, which closely resembles Pokemon, to the point several assets are indistinguishable. 

But Nintendo doesn’t stop there.

A game featuring creatures that look a lot like Pokemon is begging players to create mods that add a bit of familiarity and hilarity to Palworld. YouTuber ToastedShoes introduced a mod that changes the player model to Ash Ketchum. Within the same day, Nintendo ordered him to take it down. 

Now, he’s walking on fire to challenge how close he can tread near the line of another DMCA claim with his “completely legitimate legal mod pack” that does “not reference anything.” He seems safe so far, considering his video is still up at the time of writing.

His mod technically falls under parody in the US. Anyone posting to YouTube agrees with US laws and policies. Still, in an interconnected digital world, creators and companies are welcome and legally allowed to reach out to file a Digital Millennium Copyright Act (or similar) complaint to have videos taken down. 

YouTube states, “There’s no one-size-fits-all answer as to whether a reuse falls within copyright exceptions, and the courts decide the applicability of such exceptions on a case-by-case basis.”

Japan does not have laws on parody.

While ToastedShoes is testing the legal waters, Matthew Elliot of Nexus Mods, an online hub where creators share mods for various games, has spoken to PCGamesN about his stance on the situation with Nintendo and Palworld. 

“We do think that adding Pokemon content to Palworld is a very cool idea, and we understand why people would want such a thing. However, we’re not comfortable hosting this content,” he says.

Elliott is taking caution to protect the Nexus Mods community from imminent legal danger. 

All-seeing eye Nintendo is notorious for protecting their property, targeting content that “can’t be used in regular gameplay” (adding or changing elements of Nintendo’s games) and leaks of upcoming releases. They are even against game emulation, a still ongoing argument stemming as far back as 2003. They claim it “stifles innovation.”

In Nintendo’s case regarding leaking unreleased content, leaks are unlawful because non-disclosure agreements are breached. Plus, at the heart of it, copyright holders are granted the sole right to reproduce, distribute, and display upcoming media that they own unless they otherwise grant another party to do it. 

They are not permitted to create fan content (i.e., mods) that are copies of Nintendo’s games. Nintendo clearly outlines that “game characters, story, visual elements, and music and/or registered trademarks” are not allowed to be reproduced. Copyright law protects everything the game developer creates, particularly their game elements and who distributes content.

So, yes, taking assets straight from Pokemon and plugging them into another game goes against Nintendo’s policies and copyright law if it will undergo commercial use. 

In ToastedShoes’ case, the Ash Ketchum mod is free, but he plans to upload a video about it that would receive monetization. Other online influencers and personalities would/could have gotten ahold of the mod and profited from it.

Something that “Infringes the intellectual property rights of Nintendo” prompts the developer to take action as they see fit and is appropriate for the jurisdiction. Supporting a work without infringing means seeking and receiving official permission from the author/creator of a work to use or distribute it in some sort of way, usually by paying a fee. 

Fair use laws also prevent legal fault for using bits and pieces of copyrighted content. Unlike the US, though, they don’t exist in Japan. This grants Nintendo permission to point their fearsome fingers at any little thing and label it as “copyright infringement.”

Fair use is the most complicated copyright law in the US. It grants permission to use an IP in ways that don’t harm a work’s original intention and integrity only if it “transforms” the work. 

In simpler terms, fair use doesn’t impair the money earned by an IP. It allows people to use copyrighted materials in certain circumstances, like education or news reports, because teachers’ and journalists’ primary purpose is to inform, not earn money from the IP.

There’s no concrete definition of fair use, meaning its definition and application are decided in court. However, it boils down to considering:

1. Purpose and character of the use 
2. Nature of the copyrighted work 
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. Effect of the use upon the potential market for or value of the copyrighted work

If the use of a work offers “commentary, criticism, news reporting, and scholarly reports,” “limited portions” of a copyrighted work are allowed in the US.

However, in the instance of modding a video game, “If a game developer has not granted permission to modify its game and a modder is unable to rely on the fair use doctrine as a defense for its unauthorized use of the copyrighted work, then it is left to developers (or publishers with rights to games) to enforce their rights.”

Game developers must explicitly state they allow modifications to their games and IPs.

Modders who rip Nintendo’s IPs, place them directly into Palworld or other games, and then post them online are infringing. The modders take someone else’s ideas/creations against the creator’s will and knowledge.

Because copyright exists and Nintendo has strictly stated no one is allowed to tamper with any of their games, that is the law. Even snippets of Nintendo content appearing online or elsewhere can be shot down because Nintendo can decide what is and isn’t fair use. 

Besides cracking down on mods, if Nintendo were to size up Palworld for infringement, they would have to go through all the game assets. All 138 Pals species would have to be inspected by Nintendo, Pocketpair, and the judge.

Frankly, Nintendo won’t find any legal ground to bring Pocketpair to court. Pal designs are distinct — albeit reminiscent — of Game Freak’s/Nintendo’s designs.

After all, copyright doesn’t inherently mean originality. A creation can share similarities with other works, but it has to be able to stand alone by being distinguishable. 

To see an in-depth comparison of Pal designs vs. Pokemon, check out this IGN article.