 The latest Xbox Game Pass release to garner no small amount of attention, Pow World, does so primarily because of the controversy surrounding its very concept. The game's art style and presentation are so very similar to that used by Game Freak's Pokémon games that you may well find yourself wondering how this is even legal. Isn't this just a clear case of copyright theft? Especially given the Pokémon company's standard zero-tolerance approach to fan games, and especially given that Pow World's big draw, at least from a meme perspective, is that it juxtaposes this incredibly Game Freak-esque art style with a level of violence that we don't normally explicitly see in the Pokémon world. So how, then, is Pow World even allowed to exist? Why is this game, this game of all Pokémon fan games, being given a pass by Nintendo and the Pokémon company when so many other fan games have been taken down? The answer is in how Pow World navigates the tricky waters of intellectual property. Believe it or not, but the extreme violence shown in the game is actually one of the strengths that keeps Nintendo and the Pokémon company off the game's back. First, before we get into this, a quick legal disclaimer. I am not a lawyer, this video does not constitute legal counsel. If you are making a Pokémon fan game of your own and you want to know where you stand from a legal perspective, do not use YouTube as your source of information. With that out of the way, let's talk about intellectual property law, and how Pow World has managed to deal the Pokémon company a critical hit. Right. Take this off now. Didn't fit anywhere. Here's my kid's hat. I've been wanting to do a video on this topic for a very, very long time now and have not found quite the right inspiration or the right moment to make it. And the release of Pow World certainly feels like that could be it. So I want to talk about how intellectual property law works. Essentially, for the purpose of this video and for the purpose of every fan game, there are three types of intellectual property that you need to be aware of. Most people think, oh it's just copywriting, something's infringing copyrighting, that's going to cause all the problems. No, it's actually a little bit more complicated than that. You've got patents, you've got trademarks, and you've got copyright, and all of them work slightly differently and all of them protect different types of intellectual property. And the way that Pow World gets around the Pokémon company's normally very strict, tight grip on their intellectual property is in which of these three it plays with and how it avoids triggering the problems that would constitute a lawsuit if used in the wrong way. Let's get patents out of the way very quickly, because they're not particularly relevant to what we're talking about today. Patents cover an idea, a particular type of design of a thing, something that you have thought of and that you have said, I own this idea. And in order to get a patent, you can't just have it automatically. You need to get it approved from a patent office. You need to apply, you need to pay money, and then the patent office will say, yes your idea is significantly distinct from everything else, and indeed your idea is specific enough that we can give you a patent because it's not a general widespread thing. You can't patent, for example, the concept of walking on two legs. You can't patent, for example, the idea of trousers or of shoes or of different things, but you can patent the specific design of the shoes. You can patent the way that the laces connect if you've got a particularly novel unique idea for how the shoes should hold their laces, etc. Where things get more relevant to Pow World are in trademarks and copyrights. There's a fair amount of overlap between these two, but they are their own distinct things. You can get something which infringes on copyright but does not infringe on a trademark, and vice versa something which infringes a trademark but does not infringe on a copyright. A trademark is very simply the mark of your trade. It is the identifier, the word or the image that people associate strongly with your brand. So the Pokemon Company owns the trademark on the word Pokemon. They are the only ones that are allowed to sell a product as being part of the Pokemon brand. Meanwhile, copyright, again very simply, is the right to make a copy of something. You can't copyright an idea. That's what a patent is for. So if I read a book and I like the concept of it, I like the core principle in the middle of it, I can take that and I can use that as the basis of my own book. This happened with the book The Holy Blood and the Holy Grail by Michael Bageant, Richard Leigh, and Henry Lincoln. It is a theological book which puts forth the hypothesis that Jesus Christ married Mary Magdalene and had children with her. The book then was read by Dan Brown, another author who loved the general concept so much that he adapted it into his fictional work, The Da Vinci Code, and it's a central point of the story of The Da Vinci Code. The authors of The Holy Blood and The Holy Grail were not particularly pleased with this and attempted to sue Brown for using their idea in his book, but they were unsuccessful because you can't copyright an idea. To this end, the Pokémon Company does not own the right to make games about catching monsters, and indeed they shouldn't because they were not the first people to do it. There are many examples of the genre that I've heard called Mon Likes, which I quite like that as a name, such as Shin Megami Tensei, which long predate Pokémon. Pokémon was not the first game that featured Pokémon-style gameplay. Pokémon, though, did it in a way that was wonderfully palatable to a lot of people around the world and did it with a very distinct art-style. We've seen a recent boom in indie developers taking on the Mon-like genre and interpreting it in different ways. We've had cassette beasts, we've had Temtem, and now we've got PAL World, which does its own thing with this, even though it looks very, very similar to the Pokémon Company's game. Similar to how you can't copyright an idea within a game, you also can't copyright a gameplay mechanic and you can't copyright an art-style, and that means that all of the things that make Pokémon unique are indeed free and available for anybody to use. What the Pokémon Company can control, though, and what they can stop you doing is releasing any game with the name Pokémon in the title, and they can stop you from using Pikachu's face or likeness. This is because the appearance of Pikachu, the character, is trademarked by the Pokémon Company. He is synonymous with the brand. When you see Pikachu, you think the Pokémon Company. Now, the Pokémon Company has some Pokémon names trademarked, and some Pokémon names are not trademarked. So, for example, Bulbasaur is trademarked, Charizard is trademarked, Scorbunny I found is trademarked. There's a wonderful list, because of how trademarks work, of everything that is currently trademarked, and by which company and the address of that company, so you can very easily search for and find some of these names. At the same time, looking at the UK database of trademarks, I wasn't able to find a trademark for Cyndaquil, for Totodile, and for some other Pokémon names, so some are trademarked, and some are not. What's more, the appearance of these Pokémon, the specific design of these characters, aren't necessarily trademarked, but their exact design would be copyrighted. It's not an idea, but if you make a copy of the exact design as it appears in a different piece of work, you are still making a copy, even if it's not necessarily a perfect copy. To that end, one wrinkle in copyright law involves derivative works, the idea that if you just read a book, and then take large chunks of the text from that book, and put them into your own book, you are still infringing on copyright, even if you're not copying the entire thing across. Similarly, if you're making a picture that is based on a character that somebody else has designed, you are copying that character. No, you're not copying the idea, but you are copying the design, which is copyrighted. And if that seems complicated and confusing, and like there's a huge grey area in the middle, yep, welcome to copyright law. Like most copyright cases involve trying to puzzle out what actually constitutes a derivative work, and what is just fair use the use of a similar idea or a similar concept. Take anything that Ed Sheeran has had to do in any court case in the last year, and you've got a pretty good example. We've gone into detail in a previous video about the estate of Sherlock Holmes, and how they are very on it in protecting their legal claim, what they claim to have control over, which is the idea of Sherlock Holmes being nice. Because the character of Sherlock Holmes is long since out of copyright, he is within the public domain. But the idea of Sherlock being kind only appears in some of the later works, which were under copyright for a lot longer, and the Sherlock Holmes Foundation asserts that therefore any work which shows Sherlock Holmes in a compassionate light is infringing on their copyright, which is obviously nonsense. But this is how copyright law works, is that people end up trying to make a bigger claim than they necessarily can hold on to. Indeed, it's that attitude of the grabbing a bit further then and we can really reach and just seeing how things puzzle out in court, that is a large driver of the way that the Pokemon Company and Nintendo are often a little bit over ambitious in the way that they shut down fan projects. There are concerns that if a company doesn't maintain a strong boundary and says, no, this is ours, you can't touch it, even when dealing with fan works, that other companies might be eager to kind of sink their teeth into it a little bit, just kind of test it, push the edge, try and try and just help themselves to a little bit of what the other company owns. So Power World gets around intellectual property law surrounding trademarks by simply not using the word Pokemon and not indeed using a title that sounds anything like Pokemon just to be as distinct as possible. The game also does not feature Pikachu and it doesn't feature any of the names of Pokemon that we have seen in actual Pokemon games that might be trademarked or copyrighted. But what it does do is feature a lot of characters, a lot of animals that look very, very similar to the Game Freak art style in a way that we don't normally get in these Mon likes. Indeed, it could be said that Power World is in danger in some places of failing the squint test. In 2012, Tetris Holdings LLC sued Shio Interactive Limited over a Tetris clone that had appeared on the iOS app store. The game in question, Meno featured gameplay that was very similar to Tetris, which the judge reiterated very early in the case was not a problem because you can't copyright gameplay. However, the game also had a visual style that was almost identical to the Tetris games that were coming up for mobile at the same time. In this case, the game failed the squint test. If you took a screenshot of Meno and you put it next to a screenshot of Tetris and you squinted at them, it was very difficult to tell the two apart. And for that reason, the judge ruled in favour of Tetris. So according to the judge in that case, the border line as to whether or not a game is infringing on copyright is, quote, if one has to squint to find distinctions only at a granular level, then the works are likely to be substantially similar. So as said, in places, PAL World could be in danger of failing the squint test. The designs of these characters and the art style in general are so similar to Pokémon that it looks like this is copying Pokémon to a degree that is not transformative enough and would be considered derivative. And then we get to the other side of the gameplay. Because of course, that's the big meme with PAL World that it's Pokémon and it looks so much like Pokémon, but it's got that added level of violence. You'll notice I'm being deliberately very coy about describing what kind of violence, and there's a reason for that. This is YouTube, can't really talk about some of the things very openly. You can look it up on the internet, it's very easy to find, and indeed I'm probably being a bit too cautious, but whatever, this is a family channel, I don't want to go into it. To this end then, if PAL World was simply a mon-like in the traditional sense, with this art style, with this design, with these characters, then yes, it could potentially be seen as infringing on the Pokémon company's copyright because it is derivative, it is not substantially transformative of the original Pokémon idea and the way that most modern Pokémon games are presented. Because of the unique quirk in its gameplay, because of that weird twist to the formula, because it's the kind of game that makes people go, what, why, why did somebody make this, why? Because of that, PAL World is not actually infringing on the Pokémon company's copyright. And while it's not necessarily the kind of game that I personally would want to play, and while I can't speak to the quality of the game itself, I have nothing but respect for the way that Pocket Pear have dodged and swerved their way around intellectual property law in order to get this thing out the door. So then, the moral of the story. If you want to make your own Pokémon fan game, and again, this is not legal advice, but if you want to make your own Pokémon fan game, don't call it Pokémon, put in your own character designs, and add something weird to the mix.