Parody or Plagiarism: A Discussion on the Intellectual Property of Palworld and Pokémon

TJ Cleary, Contributing Member 2023-2024

Intellectual Property and Computer Law Journal

I. Introduction

Parody has a storied history in United States intellectual property law.[1] The Supreme Court has found protection for it under the First Amendment, including areas of parody such as novels, movies, and depictions of public officials.[2]  Through the progression of technology and the emergence of new forms of entertainment, copyright law has struggled to keep up. During the early rise of video games and home consoles, it would not be uncommon for a game to use copyrighted characters without the consent of the creator.[3] As video games became more popular, it became easier for copyright holders to identify and preserve their copyrighted material and crack down on infringement.[4] Before the internet age video game publishers were able to clamp down on developers using copyrighted material. Litigation surrounding Video games has also seen increasing litigation as they become more realistic losing the fantastical and drawing from real world counterparts.[5] This article will discuss the recent release of a video game titled Palworld, or “Pokémon with Guns,” and its place threading the needle parodying a multi-billion dollar game franchise.[6]

II. Background

Pokémon and Palworld

Pokémon is a video game franchise, published by Nintendo, that was originally released in 1996 on the Game Boy Console.[7] After finding immense success in Japan, the Pokémon Co. was formed and the games were released in the United States in 1998.[8] The Pokémon franchise did just as well in the United States, spawning the infamous “Pokémon craze” of the late 90s.[9] Since then the franchise has gone on to become the highest-grossing video game franchise of all time, with about $90 billion in revenue.[10] It has also gone on to become the highest-grossing media franchise as well.[11] Being such a popular franchise has only invited parodies and satire. Pokémon parodies have even become tropes through their abundance in various forms of media.[12] Nintendo is no stranger to utilizing cease and desist letters to protect their intellectual property.[13] Nintendo has recently shut down fan games such as “Another Metroid 2 Remake” and fan games from the website Game Jolt.[14] The cease and desist against Game Jolt led to the takedown of over 500 fangames.[15]

Palworld is a game developed by independent studio Pocket Pair, Inc.[16] It was developed with a modest budget of around $6.75 million and was released on January 19, 2024.[17] Within eight hours of being on the market, the game was downloaded over one million times.[18] Additionally, Palworld was the second game in history to reach two million concurrent players at one time on the gaming platform Steam.[19] Despite the huge achievements of Palworld, it was not without criticism. After the earth-shattering success of Palworld, many people questioned whether the game improperly used AI to create its assets or whether Pocket Pair plagiarized previous designs from the actual Pokémon.[20] Nintendo has even issued an official statement saying that they “intend to investigate” the game for potential copyright infringement.[21] While Palworld has been immensely successful, debate continues on whether it is an example of a spiritual spin-off or plagiarized knock-off.

Copyright Law and Parodies

As stated earlier, copyright law has a strong history of protecting parodies under the First Amendment.[22] Fair use exceptions have also been used to defend parodies under copyright law.[23] The Supreme Court in Campbell v. Acuff-Rose Music, Inc. created legal standards for parodies stating, “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination.”[24]

The Court in Campbell applied fair use law to parodies utilizing four factors: purpose and character of use (commercial or educational), nature of the copyrighted work, amount and substantiality of the use of copyrighted material, and effect upon the potential market value of the copyrighted material.[25]  The Court further stated, “The fair use doctrine thus ‘permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’”[26] The Court held that a commercial nature does prohibit the fair use defense.[27] Opening the door for parody protection in copyright law.

III. Discussion

Palworld Parody or Plagiarism

Copyright law has strong protections for parodies under Fair Use Doctrine.[28] The video game Palworld is scene in the public eye as a parody of sorts.[29] However, is it legally a parody and if so does it fall under United States fair use doctrine?

The Supreme Court in Campbell described parodies as mimics of the original work.[30] Palworld, while not utilizing assets from Pokémon, certainly mimics it. The gameplay includes using a “ball” to capture wandering monsters. Similarly, a core feature of the Pokémon games introduced was the ability to capture Pokémon in poke balls.[31]Some claim that some monsters (pals) in Palworld are remarkably like pre-existing Pokémon designs.[32] Additionally, the open world nature of Palworld bears a resemblance to a recently released Pokémon spin off title Pokémon Legends Arceus.[33] However, that is about where the similarities end.

The traditional Pokémon game takes the player on a lighthearted journey through a fantastical world without dire consequences and many safeguards. Palworld is a game that takes the family friendly norms of Pokémon and flips it on its head. While Palworld certainly mimics Pokémon visually, the gameplay cannot be any more different. Instead of turn-based combat, the player can physically fight “pals” that they find throughout the world.[34] This can be with clubs, other pals, or even guns.[35] The game relies on crafting mechanics to give the player better equipment to fight stronger “pals.”[36] Additionally, the tone of the game is completely different than a mainstream Pokémon game. Palworld is rated T while every mainline Pokémon game has been rated E (the lowest rating possible).[37]

There is a huge level of freedom in Palworld: you can fight how you want, explore how you want, and complete the game when you want. The open-world nature of the game provides a greater sense of exploration than the typical Pokémon game. While Pokémon has been trending towards open-world exploration, they are still largely confined by storylines and tutorials.

When looking at fair use Palworld also has a compelling case. Just because Palworld has commercial use does not mean that it is not fair use.[38] The nature of Palworld can be argued to be a parody of your traditional Pokémon game. It brings in more “adult” themes and allows for more freedom and flexibility than a typical Pokémon game. While there are certainly similarly designed monsters, there has not been explicit use of copyrighted material. Nintendo has successfully won a copyright case regarding Pokémon before.[39] A small café had been using Pokémon IP as a party theme, charging a $2 admission.[40] Nintendo successfully brought a copyright suit against them and was awarded $4,000 in damages.[41] This was an explicit use of intellectual property making the case very simple. There is a compelling argument that Palworld, like the café, is using the popularity of Pokémon to make a profit. However, competition is not illegal and since Palworld did not use the Pokémon Company’s copyrighted material, this factor, like the last, is moot.  

IV. Conclusion

While Palworld and Pokémon have some similarities, the actual games cannot be further apart. While Palworld can be deemed a parody and has a strong fair use defense if litigation were to arise, it is really its own creation. Games such as Palworld are examples of taking a concept that has worked and putting their own spin on it. Copyright law is used to protect intellectual properties and is not a weapon to attack new and separate ideas. The balance between protecting intellectual property and allowing for creativity is thin. Palworld treads on the line, however, it does not cross it. It simply gets as close as possible like any good parody.

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[1] Kyonzté Hughes, Parody and Satire: Free Speech or Something Else?, Freedom Forum, (Sep. 13 2002), https://www.freedomforum.org/parody-satire/.

[2] Id.

[3] Kurt Kalata, Cease and Desist – Parodies and Infringement in Video Games, (Aug. 23 2018),  http://www.hardcoregaming101.net/cease-and-desist-parodies-and-infringement-in-video-games/.

[4] Id.

[5] Christopher Zheng, Updates from the Video Game World: The Copyright Issues of Realistic Gameplay, (Jun. 22 2020), https://itsartlaw.org/2020/06/22/updates-from-the-video-game-world-the-copyright-issues-of-realistic-gameplay/.

[6] Wesley Leblanc, What Is Palworld? The New ‘Pokémon With Guns’ Survival Game Everyone’s Playing, (Jan. 31, 2024), https://www.gameinformer.com/2024/01/31/what-is-palworld-the-new-pokemon-with-guns-survival-game-everyones-playing.

[7] History, The Pokémon Company (last visited Jan. 31 2024), https://corporate.pokemon.co.jp/en/aboutus/history/.

[8] Id.

[9] Sarah Fields, 1999 Time Magazine Letters About the ‘Pokémon Craze’ Are a Blast from the Past, (Jul. 8 2022), https://gamerant.com/pokemon-craze-1999-time-magazine-letters-opinions/.

[10] Carly Hallman, The Top 50 Highest-Grossing Video Game Franchises, (last visited Jan. 31 2024), https://www.titlemax.com/discovery-center/lifestyle/the-top-50-highest-grossing-video-game-franchises/.

[11] Carly Hallman, The 25 Highest-Grossing Media Franchises of All Time, (last visited Jan. 31 2024), https://www.titlemax.com/discovery-center/money-finance/the-25-highest-grossing-media-franchises-of-all-time/.

[12] Phonymon, TV Tropes (last visited Jan. 31 2024), https://tvtropes.org/pmwiki/pmwiki.php/Main/Phonymon.

[13] Paul Murty, Nintendo Faces Backlash Over Cease & Desist Letters, (Dec. 8 2020), https://smithhopen.com/2020/12/09/nintendo-faces-backlash-over-cease-desist-letters/.

[14] Allegra Frank, Nintendo slaps Metroid 2 remake and 500-plus fangames with takedown orders, (Sep. 2 2016), https://www.polygon.com/2016/9/2/12770344/nintendo-slaps-metroid-2-remake-and-500-plus-fangames-with-takedown-orders.

[15]  Id.

[16] Kit Eaton, Palworld’s Popularity Is a Huge Win for Small Game Makers, (Feb. 1 2024), https://www.inc.com/kit-eaton/palworlds-popularity-a-huge-win-for-small-game-makers.html/.

[17] Id.

[18] Id.

[19] Joshua Wolens, Palworld becomes second game in Steam history to hit more than 2 million concurrent players, (Jan. 25 2024), https://www.pcgamer.com/palworld-becomes-second-game-in-steam-history-to-hit-more-than-2-million-concurrent-players/.

[20] Dani Di Placido, Palworld’s ‘Pokémon With Guns’ Controversy, Explained, (Jan. 22, 2024), https://www.forbes.com/sites/danidiplacido/2024/01/22/the-big-palworld-controversy-explained/?sh=417ef2cb5e91.

[21] Inquiries Regarding Other Companies’ Games, The Pokémon Company, (Jan. 25 2024), https://corporate.pokemon.co.jp/media/news/detail/335.html.

[22] Kyonzté Hughes supra note 1.

[23] Parody, cornell law school, (last visited Feb. 1 2024), https://www.law.cornell.edu/wex/parody/.

[24] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S. Ct. 1164 (1994).

[25] Id. at 577.

[26] Id.

[27] Id. at 525.

[28] cornell law school, supra note 22; Campbell v. Acuff-Rose, 510 U.S. at 525.

[29] Dani Di Placido, supra note 19; Wesley Lablanc, supra note 6.

[30] Campbell v. Acuff-Rose, 510 U.S. at 581-582.

[31] Hector Madrigal, Capturing Pokemon, (Mar. 17 2013), https://www.ign.com/wikis/pokemon-red-blue-yellow-version/Capturing_Pokemon.

[32] Spencer Whitworth, 15 Palworld Pal designs that are similar to popular Pokemon, (last modified Feb. 5 2024), https://www.sportskeeda.com/mmo/5-palworld-pal-designs-similar-popular-pokemon.

[33] Andrea Trama, Palworld Puts the Next Pokemon Legends Game Between a Rock and a Hard Place, (Jan. 22 2024), https://gamerant.com/pokemon-legends-arceus-sequel-palworld-survival-catching-open-world-comparisons-good-bad/.

[34] Greysun Morales and Thomas Hawkins, Palworld Guide Hub – Tips, Base Building, Best Pals & More, (Feb. 10 2024), https://gamerant.com/palworld-guide-hub-tips-tricks-base-building-best-pals-crafting-dungeons-more/.

[35] Id.

[36] Id.

[37] ESRB, Rating Database: Pokémon, (last accessed Feb. 17 2024) https://www.esrb.org/search/?searchKeyword=pokemon.

[38] Campbell v. Acuff-Rose, 510 U.S. at 525.

[39] Mitch Vogel, The Pokemon Company Sues Fan for Copyright Infringement, Demands $4,000 in Damages, (Oct. 2 2015), https://www.nintendolife.com/news/2015/10/the_pokemon_company_sues_fan_for_copyright_infringement_demands_usd4000_in_damages.

[40] Id.

[41] Id.