The Price for Pokemon - How Much Are Childhood Icons Worth Protecting?

The Value of the Pokémon Franchise

If you were born in the late 1980s or early 90s or have young children, you have probably encountered a red-cheeked mouse called Pikachu or any of the hundreds of other Pokémon that exist in the Pokémon media franchise. While the premise of catching colourful creatures is rather straightforward, its simplicity and charm belie its commercial value.

The Pokémon franchise started as a pair of handheld video-games but currently spans 19 television seasons, 20 movies, 10 cinematic shorts, 2 television specials, a 20-year-old trading card game, 27 video games, a multimillion dollar smartphone application, and many other enterprises. So, when considering the substantial amount of success the franchise has had, why might the legitimacy of the Pokémon name not be held in the same esteem as other brands? One possibility is that the youth-oriented nature of the brand casts doubt on its potential; however, with its revenue earnings standing at $62 billion in 2015 the name and associated characters are well worth protecting.

The Difference a Name Makes

The Pokémon brand can have a substantial impact on the public’s perception and purchasing habits of goods. For example, compare and contrast the success of Niantic Inc.’s last two mobile gaming applications: Pokémon Go and Ingress. Both games feature location-based, augmented reality gameplay with king of the hill style competition between players. However, there is a drastic difference in the success of the two games. Despite being released two and a half years earlier, Ingress is greatly overshadowed with only a tenth of Pokémon Go’s hundreds of millions of downloads on the Google Play store. Given the similarities in the core mechanics of gameplay, the fact that both games were developed by the same company (Niantic), and that both use the same map databases on which their augmented reality features work, it seems likely that the main contributor to the difference in public reception of the titles is the Pokémon branding. Thus, when considering the protection of intellectual property rights for even youth oriented products, it is important to consider the full scope of the effects a simple change in name and characters can have on otherwise similar products.

Fandom

The Pokémon universe has experienced a significant amount of growth since its inception, which is partially attributable to the thriving fandom and associated subculture. Having mediums to discuss interests or share themed artwork is good publicity that compounds the awareness and recognition of the name-brand. While this sense of camaraderie among consumers has helped substantially, sometimes the limits of what is lawful are crossed. A case from 2015 sought an injunction over the inclusion of two Pokémon characters, Pikachu and Snivy, in promotional material for a Pokémon themed event. At first, it seems like a straightforward case: the defendant did not acquire permission to reproduce the two creatures and the plaintiff wanted their IP rights respected. The peculiarity of this case comes from its context within the tech, fantasy, sci-fi, gaming, art, and internet subculture.

The contested promotional material was for a sold-out, Pokémon themed party at the Penny Arcade Expo (PAX), a large and well-established gaming convention founded in 2004 by the authors of a late 90s web-comic series. The growing popularity of tech and video-game culture is partly attributable of these types of social events, where like-minded individuals can meet, discuss their interests, and foster recognition for their hobbies. So, when a Pokémon themed party to celebrate the start of PAX is cancelled, there is some damage to the promotion of the subculture itself. That is to say, the people who are using the intellectual property of others unlawfully in a promotional context are often also the individuals who have indirectly developed the franchise and contributed to its popularity.

To the disappointment of many fans, the Pokémon themed party was cancelled because of the lawsuit. The plaintiff, Pokémon Company International Inc., put forth an initial settlement offer for damages and its attorney fees. In response, the self-representing defendant who organized the party turned to the Pokémon fandom through crowd-funding to cover the costs of the settlement and successfully raised enough money. However, the defendant, Ramar Larkin Jones, did not respond in time to the offer and published a letter from the Pokémon Company detailing the settlement, which is generally an unwise decision in the normally confidential process of settlement discussions. What the this did achieve for the defendant was substantial community outcry over the lawsuit, with Vice, Kotaku, Eurogamer, and many other publishers within the subculture expressing dissatisfaction with the Pokémon Company suing one of its own fans. In response to this backlash the Pokémon Company lessened the settlement to a permanent injunction against the defendant’s unlawful reproduction of copyrighted material, who accepted the new resolution.

Moving a Franchise and its Subculture Forward

Obviously, lawyers cannot allow the free use of copyright-protected images, like our friend Pikachu, without any restraint. However, by being overly inflexible about the use of any character with a vague likeliness to a Pokémon the brand itself may be damaged. Consider Maroon 5’s latest music video for their song Don’t Wanna Know, which features a star-studded cast of celebrities, including Ed Helms, Sarah Silverman, Vince Vaughn, and Shaquille O’Neal, being chased by throngs of people looking to “catch” them on their smart phones in a manner similar to Pokémon Go’s mechanics. There is a strong resemblance in the video between certain costumes and Pokémon characters, with front-man Adam Levine’s costume appearing to be based on the Squirtle Pokémon. Yet the homage paid by Maroon 5 is likely to be of great benefit to the Pokémon brand due to the association with a juggernaut of popular culture. This becomes especially important when considering that the widely popular Pokémon Go game has lost some of its momentum lately. Ultimately, the protection of IP rights for a franchise must be a careful balancing act that does not preclude the possibility of growth through fandom, since the fans are the same people who are responsible for the brand’s success.

Dominic Cerilli is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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