A Universe familiar to many has returned in a completely new form – as an application for mobile devices. Pokémon Go has gained huge publicity. Observing the success of Niantic Labs – the creator of the game – we can’t go without asking question about how the company will cope with the placement of ads, trademark and copyright issues, the protection of personal data, and other legal questions it faces.
The application is based on an augmented reality mechanism, that is the real time combination of the real world with digital image generated by the cameras in mobile devices.
This way, Pokémon Go combines the elements that exist in physical space – such as parks or buildings – with virtual characters and items that appear on the screens of smartphones. To determine the physical location of the player the application uses GPS and Google Maps. As a result, players can look for Pokémons and catch them in their area.
Freedom of panorama in augmented reality
Pokémon Go uses pictures and the names of specific objects from the real world and creates Poké Stops, that is locations that allow the lure Pokémons and gain bonuses in the game.
This action may cause problems from the perspective of regulations concerning the protection of copyright. In Polish law there is the so-called “freedom of panorama” (article 33 paragraph 1 of the copyright law), which is an exception to the monopoly of legal copyright. This institution allows the dissemination of photographs and videos, in which there are visible buildings, sculptures or other works located in public spaces. Therefore, for example, a mural or graffiti satisfy the conditions for exemption, and their photographs can, as a rule, be used in the game. These objects must, however, be permanent, which excludes the application of this exception in the case of, among others, a unique Christmas decorations on the town square.
The regulation of panoramas – as any fair use – in the Polish law is still subject to one more restriction: it can not affect the normal use of the work or violate the rightful interests of the author.
The freedom of panorama is part of the EU law, however, Member States may grant exceptions in this regard. Therefore, among others, in France, Belgium, Italy and Greece, as a rule, the dissemination of images of this type – if they are protected by the copyright – requires the consent of the creator. For architecture, the time is helpful (typically 70 years), although this is not always sufficient circumstances. Although the Eiffel Tower is no longer protected, but its illuminations are.
Juggling with trademarks
Another issue that should be paid attention to is the possibility of using trademarks in augmented reality. Their use requires the consent of its owners, if it is associated with the use as a trademark, especially when marking products or services. Showing the trademark as an element of the surrounding reality on the other hand, e.g. in a film, news programs or a game will usually be permitted without the consent of the owners.
The use in the application of a facility images with visible trademarks of different entities does not pose a problem. Various ways of modifying the reality by placing some images on them (e.g. changing a trademark to another, adding a trademark or its removal) definitely causes legal consequences.
Augmented, marketing reality
Exploiting the potential of augmented reality as a basis for the operation of the game, combined with the huge popularity of the application will be an opportunity to make advertising contracts for the creators of Pokémon Go. So far, Poke Stops randomly spread across the map contributed to the increase of turnovers of many eateries located nearby. One of the fast food chains even started cooperation with Niantic.
In Japan, each of the three thousand McDonald’s will be a Gym, which is a particularly attractive place for Pokémon trainers due to the possibility of fighting between players. If the idea of sponsored sites turns out to be good, it probably will be replicated in other countries.
Over time, the use of technology on which Pokémon Go is based can take a completely different form, as augmented reality allows to place ads. It is therefore possible when catching a lovable Pikachu will be able to see a branded house or car, and walking down the street in our phone we will see an image alternative to the real one. At the same time we must remember the use of objects as advertising space in augmented reality requires a thorough legal analysis of every case, as it can violate the rights and interests of owners, developers, companies and institutions. It may also be contrary to beliefs, opinions, or agreements entered into by them, and sometimes it may even be a case of comparative advertising. It is not difficult to imagine clever advertisers, who – thanks to virtual reality – in front of a sign directing to a fast food could add an sign directing to another restaurant, or create in a bank’s window a balloon with a comparison with competitor’s offer. Probably no one would like to see – even in an alternate reality – an advertising of a political party or organization, with which one does not identify, on the wall of his or her home or office.
Catch them all: Personal data
To play the Pokémon Go you must agree to share information about your location. This is required to determine your position relative to the “creatures”. If you find yourself in a sufficiently small distance from a Pokémon, your device will reads data from the game, and the object of your interest will appear on the screen of the mobile device. We should be aware that research shows that based on location data – especially over a longer period of time – one can very precisely determine a number of private information, starting from the place of work or residence, through interests, habits and ending with acquaintances.
Pokémon Go is free, except for optional micropayments. Except that this option is only apparent. Despite the absence of actual financial transactions – needed to use the application – we pay with something else: privacy and our data. Theoretically, it is more and more a market standard in the digital economy. However, creating both the game and different business models of their operation, it is worth remembering that each of the payment methods must be well thought out and designed in accordance with the law.
Player as a consumer
The terms and conditions of the game have raised controversy in Europe (at the moment they are not available on the Pokémon Go developers’ website), which in part are considered incompatible with European regulations concerning the rights of consumers. The Federation of German consumer organizations even threatened with filing a lawsuit against the game developers, in the event of failure to remove or alter the problematic provisions of the terms and conditions. Most doubt raises the possibility of transferring by the game administrators, at their discretion, user data to third parties, unclear terms and conditions for an average consumer, the possibility of changing the terms and conditions by the creators at any time, and finally that the Niantic may stop providing the service without user’s permission.
Players under special supervision – what is the game developer responsible for?
Another important topic raised sometimes in the media, is the behaviour of Pokémon trainers. Intrusion into the streets, buildings and an airport area in the pursuit of consecutive points and levels in the game have become more and more frequent cases. When designing a game it is worth considering also if the developer may be responsible for the player or third parties in the case of any accidents associated with the entertainment. The intuitive answer for the most of us will probably be “no”. Everyone plays voluntarily and makes decisions on their own. However, from a legal perspective this is more complicated.
First, not all players are of legal age, and slightly different standards must be used in the case of such players, especially if you allow them to register to the game on their own (without the approval of parents or guardians). Secondly, certain mechanisms of the game, which takes place in the real world can create or provoke unsafe behaviour. Putting a Pokémon on a highway is a different situation than doing it in the middle of a park. Besides, the key here may be marketing communication, or even technical solutions (e.g. a mechanism for the use of augmented reality in a way that interferes or limits the perception of what is happening around the player).
And there is no denying that a simple provision in the terms and conditions that the developer is not liable for any damage caused or suffered during the game, usually not only proves to be insufficient, but it also can involve allegations of the use of abusive clauses (forbidden in relations with consumers) and a response, e.g. of the Office of Competition and Consumer Protection.
First court cases
As we have already mentioned, the desire to catch rare Pokémon can bring players to places where they should not be in. Such was the case of Marder v. Niantic, which takes place in the United States. Jeffrey Marder, a property owner, said that since launching the application his property has been visited by users Pokémon Go. Players constantly knock on his door asking for permission to enter his garden. Sometimes they trespass onto the Mader’s premises. According to the claimant representatives, the creators of the game put the locations of the Pokémon universe without the consent of the owners of the neighbouring property, and virtual points and the desire to be within their reach make players violate the rights and privacy of others. What’s more, developers of the application derive profits from these violations.
The Marder’s case is one of the first cases that which contain claims of a property owner against the developers of programs basing on augmented reality. We should be interested in it and follow it, because it can set a framework to deal with similar cases.
The modern process of creating a game is no longer just the programmer’s job. It is a challenge for graphic designers, animators, writers and whole creative teams. It is often years of R&D departments work on the development of technology which can be used in the game. But it is also necessary to examine and establish business models and legal frameworks of the operation of the application, data collection and processing, generation of payments, reasonable limitation of liability, the use of intellectual property rights, and finally – the promotion of the game.
And all of this, of course, for the joy of millions of players around the world!