“Gotta Sue’Em All”: Pokémon Go and the Law

   

     by Dylan Erwin

     It’s August. As with every August in Oklahoma, it’s just a few degrees shy of sweltering. It’s the time of the year where you’re thankful for air conditioning, and even more thankful for the French Foreign Legion for introducing the world to iced coffee during the 1840 siege of Mazagran in Algeria. It’s the time of the year where you find yourself wondering who in their right mind would want to be outside. Then, you see them. They travel in packs, with their heads buried in their iPhones. They’re suffering the sweltering heat of an Oklahoma summer with one simple goal in mind: “gotta catch’em all.”

     Summer 2016 is the summer of Pokémon Go.

     In Pokémon Go, the new game from Niantic, Inc. for iOS and Android devices, adults, children, and even lawyers in their late 20’s attempting to relive their childhood, are challenged to go out into the world and begin collecting invisible monsters with their own unique names and abilities.[i] The app uses “augmented reality” technology to place Pokémon in the real world using your phone’s GPS; Pokémon that you can only see through your phone’s camera. Once these Pokémon have been collected, you can train them and battle against other players at “gyms” designated around the city.

     Pretty cool, right? Well, as with many things, there’s a potential downside.

     The American Bar Association (“ABA”) published an article on July 13, 2016, written by Debra Cassens Weiss, entitled “Pokémon Go spurs lawyers to stop and consider legal issues"[ii].This article is just one of many published over the last month related to problems that have arisen due to negligent or inattentive Pokémon Trainers. As I tell my clients, my job is to think in terms of worst case scenarios. So what’s the worst case scenario for our masses of Pokémon Trainers? What potential legal problems can kids and adults alike face when frantically racing around Oklahoma City after someone tweets that they found a Mr. Mime in the Paseo District? The list of potential legal issues you could face connected to Pokémon Go is almost as extensive as the list of Pokémon that are roaming the streets of Oklahoma City (allegedly 151 as of the date of this article). All it takes is a Google search and a few clicks to read headlines like “man in Alabama robbed at gunpoint,”[iii] “men fall off ocean bluff in California,”[iv] “man shoots at teens he mistakes as thieves,”[v] “driver accused of intentionally hitting player,”[vi] “wanted criminal wanders to police station,”[vii] and on, and on, and on. The instances may be different, but the common denominator is the same – Pokémon Go.

     Imagine you are walking through Mesta Park and your phone vibrates. You look down and see that a Hitmonchan has appeared at a house across the street from the park. You try to catch it from your vantage point in the park, but it soon becomes clear that you have to move closer. So you do. Then closer, and closer. All of a sudden you’re standing in someone’s front yard with your cell phone out. You successfully catch the Hitmonchan, thus checking another Pokémon off your list, but through your camera you notice movement at the curtains. You look up from your phone, and you see an undeniably disgruntled homeowner. You panic. What are they going to do? Are they going to call the police? What are you guilty of? Is that a “beware of dog” sign? Aren’t they allowed to shoot you if you’re on their property? What if you didn’t mean to walk into their yard? Isn’t there some kind of “intent” requirement to commit a crime? This could get bad.

     Let’s switch roles and look at this from the homeowner’s perspective. You’re sitting in your living room, minding your own business, trying to binge-watch the new season of Orange Is The New Black. You hear something outside, so you get up. When you look out the window you see a stranger with his cell phone out moving towards your home. He gets closer. Then closer, and closer. All of a sudden, this stranger is standing in your front yard, cell phone still out. You panic. What is he doing? Is he trying to break in? Is he taking pictures of your home to break in later? Why would he do that? Did you leave your dog out? What if the dog gets out and attacks him? What if the stranger twists his ankle in that hole you’ve been meaning to fill in your front yard? This could get bad.

     Since the application was released on July 6, 2016, citizens, lawyers, judges, and law enforcement have all been faced with a litany of new and bizarre questions in addition to the more commonplace ones above. Questions like: “If a Pokémon is placed in my yard, am I entitled to any intellectual property rights over that Pokémon?” “If a Pokéstop[viii] is placed at a local landmark, does the appropriation of that image fit within the freedom of panorama exception to copyright law?”[ix] “Do I have any rights as a business owner to prevent Pokémon from appearing in or around my business without my consent?” The app even raises constitutional questions: “Are there any limits on First Amendment protections, such as freedom of assembly, when a public space is used as a gathering place in an augmented reality game?”

     Much like the individual Pokémon themselves, the law must evolve and adapt to meet with new challenges. In order to best represent clients, attorneys must be prepared to meet those challenges head on. So remember, as you venture out into the great unknown in search of fame, fortune, and pocket monsters rendered in augmented reality, “gotta catch’em all” is not referring to lawsuits and criminal convictions. But, if you find yourself in a bind, it is always in your best interest to have an attorney at your side. As Allana Akhtar pointed out in her July 26, 2016 USA today article, “Pikachu made me do it” is not a valid legal defense.[x] Now, if you’ll excuse me, I just heard someone spotted a Snorlax at Leadership Square.

For more information, please contact Dylan D. Erwin at 272-09241 or dderwin@andrewsdavis.com.

Sources 

[i] Pokémon is a portmanteau that derives from the Romanization of the original Japanese brand “Poketto Monsutā,” or “pocket monsters.”

[ii]  http://www.abajournal.com/news/article/pokemon_go_spurs_lawyers_to_stop_and_consider_legal_issues

[iii] http://www.al.com/news/index.ssf/2016/07/man_playing_pokemon_go_robbed.html

[iv] http://www.latimes.com/local/lanow/la-me-ln-pokemon-go-players-stabbed-fall-off-cliff-20160714-snap-story.html

[v] http://www.usmagazine.com/celebrity-news/news/florida-man-shoots-at-teens-playing-pokemon-go-outside-home-w429546

[vi] http://www.ksat.com/inside-edition/driver-intentionally-hits-pokemon-go-player-in-crosswalk-cops_

[vii] http://www.wxyz.com/news/region/oakland-county/man-playing-pokemon-go-wanders-into-police-station-arrested-on-outstanding-warrant

[viii] A Pokéstop is a designated location where players can travel to gather supplies.

[ix] https://freedom-to-tinker.com/blog/tiffanyli/pokemon-go-and-the-law-privacy-intellectual-property-and-other-legal-concerns/

[x] http://www.usatoday.com/story/tech/news/2016/07/25/pokmon-go-isnt-defense-lawyers-say/87457768/


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