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The Lawbringer: Gotta sue 'em all over the Pet Battle system?

Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Mathew McCurley takes you through the world running parallel to the games we love and enjoy, full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?

Remember in the last edition of Lawbringer, when I wrote that the majority of the questions post-BlizzCon 2011 were questions about panda people, whether Kung Fu Panda would sue, and how Pandaren are possible in China? Well, there was a third question: How can the Pet Battle system exist in World of Warcraft when it is so spiritually and mechanically similar to the underlying game mechanics of the Pokémon franchise? The truth is that it is and it isn't as similar as you might suspect, and the key factors in any copyright fight don't hold up a potential cause of action.

From the BlizzCon presentation, we gleaned a good bit of information about the WoW Pet Battle system coming with Mists of Pandaria. Players have been collecting companion (or vanity) pets for years, little dudes and dudettes who follow your characters around looking cool, performing cute emotes, and acting as the occasional status symbol. Companion pets even became the first foray into Blizzard-accepted real-money gold buying with the Guardian Cub as an experiment in fighting gray-market gold selling. Companion pets have become their own meta-game in WoW despite the introduction of the actual meta-game Pet Battle system.

Companion pets will now be at the center of a minigame of their own. After years of collecting and coveting, finally these pets will serve a purpose beyond looking adorable or annoying Dalaran with chilling screams of "NEW TOYS, FOR ME?!" Many players have noticed that the Pet Battle system bears a striking resemblance to the biggest pet battle system franchise ever created, Pokémon. Do you know what Pokémon is? I'm sure you know what Pokémon is.

What is Pokémon?

Pokémon was the brainchild of Satoshi Tajiri, a video game developer and founder of Game Freak, the development company that originally made Pokémon. After hitting it huge in Japan, the series hit it huge all over the world, creating a multi-billion dollar industry of toys, games, movies, television shows, clothing, accessories, and everything else under the sun. There are Pokémon airplanes, cars, trains, and probably a blimp. I think I remember a blimp ...

Pokémon was and is still huge. The basic gameplay is what we are concerned about, however. In Pokémon, your character -- the trainer -- finds and captures wild Pokémon creatures and uses them to do battle against other trainers and their Pokémon creatures. Mix in some RPG elements, experience, leveling up, turn-based battles, and evolution, and you've got the basic Pokémon formula -- an extremely profitable formula, at that.

The pet battle system as copyrightable?

When readers emailed me asking about whether Pokémon and Nintendo could sue Activision Blizzard over the Pet Battle system, most of the inqueries were couched in intellectual property or copyright lawsuit concerns. "Doesn't the Pet Battle system infringe on Nintendo's copyrights?" Most likely not, because the idea of the Pet Battle system is not something that is actually copyrightable. The systems, code, characters, and very specific mechanics are all potentially copyrightable, but not the overarching idea or theme of a pet battle system.

Remember how last week I brought up three factors that we should look at for Kung Fu Panda and Mists of Pandaria? While those are not the most complete understanding of the topic, it helps frame the question and the answer, so let's bring those three factors back:
  • Is the work in the same medium?
  • Could a consumer get confused as to which brand is being represented?
  • Can you even own the concept of a kung-fu-fighting, anthropomorphic, panda man, two-player-controlled pets fighting each other in a turn-based battle system?
It is important to remember that you can copyright the work but not the idea. If the implementation of another idea is too similar to the copyrighted work, then there is the potential for a cause of action. Ideas are not necessarily copyrightable. With that in mind, let's talk factors.

One could argue that Pokémon and the Pet Battle system are in the same medium, computer video games, but the platform of choice makes this a hard sell for me. PC gaming is a vastly different beast than console or handheld gaming, and while Pokémon has a presence on the PC in terms of online games, its nexus doesn't really live on your computer.

As for whether you can own the concept of pet battles and RPG elements, you can't. You can own everything about them outside of the basic concept or ideas, sure. If I wanted to call my skill advancement system "Materia," Square Enix might have a problem with that, but since it just means "substance" in Latin, there might be an issue of broadness. Conversely, if the Pet Battle system in WoW had a character called Charizard, Nintendo's lawyers might turn their heads, because Charizard is a very specific character in the franchise.

The truth is that many, many games out there have had the base RPG elements that Pokémon did long before the first Pikachu ever popped out of a designer's head. Even the concept of pet battles came long before Pokémon, and the concept of pet battles has lived on after the release of the super-franchise in loads of other games. The most famous Pokémon counter-franchise was Digimon, an entire series of games, television shows, and more that closely resembled the Pokémon universe in terms of mechanics. This was about as close as you could get to totally apeing the franchise, and it still lived on parallel to Pokémon. Pokémon just outlasted and outprofited everyone else.

Broadness

I asked on Twitter what other games had a pet battle system that people could think of. It wasn't so much to make a list of games, per se, but to prove the point that a ton of games out there already have Pokémon-like systems in place. Monster Rancher, Dragon Quest, Neo Pets, Dragon Warrior Monsters, and more all have pet battle systems and RPG elements. And in a hilarious coincidence, while writing this article, I received an email from a game company announcing a new iOS monster battle and trading card game. I think that gives you a good about whether the concept of pet battle systems are copyrightable.

As usual, the most important factor is consumer confusion. At this point, the only way to confuse the consumer at large about Pokémon would be to steal its trademark, copy the logo, and make some awful knock-off products, but that's a whole different form of trademark infringement and fraud. The Pet Battle system being included in WoW is strapping itself to an already-established brand, not some new product too closely resembling the Pokémon franchise. Suffice to say, I think Blizzard is safe.

So, no. The Pet Battle system in WoW does not seem like it's too similar to Pokémon's. Conceptually, sure, it's a turn-based pet battle system with RPG elements, but a bunch of games already have those characteristics. Leveling up your character or a pet in a game is not a concept that can be protected, until you start getting too close to the characters and code itself. After all its hard-fought success and brand bolstering, do you really think that Blizzard would head into something like the Pet Battle system without knowing clearly what the line is in terms of similarity and conceptual boundaries for a core feature in its new, highly anticipated expansion?

Meowth, that's right.

This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wowinsider.com.

Filed under: Analysis / Opinion, The Lawbringer

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