{"id":1847,"date":"2022-02-01T01:59:47","date_gmt":"2022-02-01T01:59:47","guid":{"rendered":"https:\/\/blogs.luc.edu\/ipbytes\/?p=1847"},"modified":"2024-07-13T07:15:22","modified_gmt":"2024-07-13T07:15:22","slug":"1847","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/ipbytes\/1847\/","title":{"rendered":"Nintendo\u2019s IP: That\u2019s No Pok\u00e9mon, That\u2019s My Pet!"},"content":{"rendered":"

If you were a child sometime in the last three decades, you\u2019ve likely had some sort of a connection to the cultural juggernaut that is the Pok\u00e9mon<\/a> franchise. An intellectual property so well known that Microsoft Word has autocorrected my spelling of the word Pok\u00e9mon three times now. My personal connection to the franchise has persisted throughout my life. As a seven-year-old, I scrounged together change to buy a pack of the trading cards at the local 7-11.\u00a0 Later in life, I almost got robbed<\/a> in a park while playing Pok\u00e9mon Go<\/a> at 2 AM in 2016 (true story).<\/p>\n

<\/p>\n

\"\"
Winston (Left) hanging out with Phoebe (right). Photo attributed to Louay Meroueh.<\/em><\/figcaption><\/figure>\n

Most recently, I\u2019ve begun to see Instagram ads for products not associated with Nintendo that draw from the vast pool of Pok\u00e9mon nostalgia to push their products. One service in particular, called Pika Pika by Arianna,<\/a> caught my eye. It\u2019s a commission-based service that offers to draw your pet and insert them into a Pok\u00e9mon card. The card looks like it could be used in the actual game. The picture of the pet is drawn in the style of a Pok\u00e9mon<\/a>.\u00a0Typically, on every Pok\u00e9mon card, there is a picture of the Pok\u00e9mon and a list of abilities or moves that it can do.\u00a0 The abilities that are listed on the Pika Pika card are creatively adapted in accordance with your pet\u2019s personality. I have two pets myself, and I\u2019ve thought about using this service on more than one occasion.<\/p>\n

<\/p>\n

Being new to the world of intellectual property, I wondered how this didn\u2019t violate Nintendo\u2019s IP rights. Nintendo, as it stands, is no slouch when it comes to protecting their IP.<\/a> They\u2019ve pursued aggressive legal action<\/a> in the past to target unauthorized uses<\/a> of their IP. So, I\u2019m surprised that services like this are gaining so much traction.<\/p>\n

\"\"
Attribution to PixaBay.<\/em><\/figcaption><\/figure>\n

Once I took the IP Survey class with Professor Ho<\/a>, I began to consider if such works could be protected from copyright litigation. Trademark liability is another potential issue since so much of the iconography from Pok\u00e9mon is used in the creation and promotion of these cards which could cause unknowing parties to assume that this service is associated with Nintendo and Pok\u00e9mon. But that could be its own post entirely.<\/p>\n

Copyrights and Pok\u00e9mon <\/strong><\/p>\n

Copyrights<\/a> protect \u201cworks of authorship\u201d like drawings and videogames that are original (i.e. not copied from another), fixed in some sort of tangible medium of expression (i.e. paper, electronic), and meet a minimum threshold of creativity (this is typically a low bar). With copyright protection comes certain rights <\/a>. Among these rights is the right to create derivative works.\u00a0 Derivative works use\u00a0elements from or elements based on already existing works to create a new work. These can be works such as sequels, adaptations, revisions, etc.<\/span><\/p>\n

\"\"
Pandemic-induced boredom sparked a renewed interest in Pok\u00e9mon cards among millennials. Combined with supply chain shortages, cards were selling out immediately causing many stores to limit purchases per customer. Photo attributed to Louay Meroueh.<\/em><\/figcaption><\/figure>\n

An example within the Pok\u00e9mon franchise is the Pok\u00e9mon trading card game<\/a> itself. The trading card game was actually derived from the video game<\/a> in 1996. Further derivatives from the videogame were the manga, the tv show, plushies, candies<\/a>\u2026 too many to list. Nintendo is the copyright holder of the original work, the Pok\u00e9mon videogame, and thus has this right<\/a> to produce such derivative works. Derivatives of the Pok\u00e9mon videogame have made the franchise the highest-grossing media franchise<\/a> of all time.\u00a0 A cool 109 billion dollars in revenue, beating Mickey Mouse and Star Wars by more than 20 billion dollars.<\/p>\n

Fair Use and Unauthorized Derivatives<\/strong><\/p>\n

If someone other than Nintendo creates a derivative work from Pok\u00e9mon without the company\u2019s blessing, they could be liable for violating Nintendo\u2019s copyright. However, just because this artist is producing derivative works from Pok\u00e9mon does not make them automatically liable. The author of these derivative pet cards could have what is called a Fair Use defense to protect them from liability. The Fair Use Doctrine<\/a> helps facilitate free expression and promote creativity that would otherwise be unlawful if not authorized. To have a valid fair use defense, we look at four different factors enumerated in the statute<\/a> that the courts consider holistically:<\/p>\n