[OYAN] PokemonGo and copyright

Mon Aug 1 08:38:04 PDT 2016

My counter-part at the Texas State Library was asked a question about Pokemon and I think many of you will be interested in what she learned in researching the answer (read the following email). A couple things stand out to me:

*         It's important to evaluate to determine if your use of copyrighted materials fall under the fair use clause. ALA has information about and links to a couple fair use evaluation tools<http://www.ala.org/advocacy/copyright-tools> you can use to do this.

*         While this technology isn't necessarily new, its mass popularity and use is new. Therefore, it will likely bring up new challenges so it's important we communicate with each other about how to address those challenges. "Augmented reality apps [like PokemonGo] are a quintessential example of disruptive technology. Their impact will extend beyond the digital world and affect other segments of society that may not currently even be aware of their existence."

*         Don't forget, you can check with your library's legal counsel.

--Katie

From: Christine McNew [mailto:cmcnew at tsl.texas.gov]
Sent: Friday, July 29, 2016 12:51 PM
To: NCDCR.yscon <yscon at lists.ncmail.net<mailto:yscon at lists.ncmail.net>>
Cc: Cindy Fisher <cfisher at tsl.texas.gov<mailto:cfisher at tsl.texas.gov>>; Katherine Adelberg <kadelberg at tsl.texas.gov<mailto:kadelberg at tsl.texas.gov>>
Subject: [YSCON] Question about Pokemon Characters and Copyright

Dear Colleagues,

I received this query from a children's librarian.

"With the newest Pokemon game craze, lots of libraries are jumping on board with games and such. Has the state library had any questions about copyright issues and using the Pokemon characters pics for a scavenger hunt or advertising a program?"

At first my colleagues and I thought the same Copyright and Fair Use considerations would apply as with any other game characters - http://www.copyright.gov/fair-use/more-info.html.

1.       Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.

2.       Nature of the copyrighted work.

3.       Amount and substantiality of the portion used in relation to the copyrighted work as a whole.

4.       Effect of the use upon the potential market for or value of the copyrighted work.

Then I began research and found relevant articles. Here are excerpts from "Leading-Edge Law: Issues when using 'Pokemon Go' to promote business" (Richmond Times-Dispatch, Sunday, July 24, 2016) at http://www.richmond.com/business/learning-center/article_43a941d9-534f-5caa-84d2-0c55486ebbb7.html

The game's terms of service state Niantic considers all of its characters and icons to be its intellectual property, along with the name of the game itself. It warns it can terminate your "Pokemon Go" account because of any usage of those things for a commercial purpose.

Yet, Niantic appears to be tolerating - if not encouraging - some commercial promotion. ...

...  stick to what trademark law calls "nominative fair use."

Under this doctrine, it's OK to use someone else's trademark (usually a business, product or service name) without permission when doing so is necessary to send a legal message about your business.

For example, if you are listing your used Honda automobile on Craigslist, it's OK to identify it as a Honda.

You probably won't encounter a problem by putting out a Facebook or Instagram post or tweet of a screenshot of a Pokemon character captured in your store with a message saying something like "Look what we caught here!" or "Our lures are drawing them in."

Aside from such game screenshots, avoid using any graphics taken from the game in your visual advertising.

Finally, Niantic obviously has no problem with people using the social media hashtag #PokemonGo, so using it in your social media posts shouldn't be a problem unless the post otherwise creates a false appearance of a sponsorship or other affiliation with Niantic or the game.

This is the final paragraph from another article, "The intriguing legal ramifications of Pokemon Go." (Nissenbaum Law Group, July 25, 2016) at
http://brettterpstra.com/2016/07/25/the-intriguing-legal-ramifications-of-pokemon-go/.

"Augmented reality apps are a quintessential example of disruptive technology. Their impact will extend beyond the digital world and affect other segments of society that may not currently even be aware of their existence. In the past, the law has done a very uneven job of keeping up with the pace of change created by such disruptive technologies... I could provide more examples, but I just saw a Mewtwo run into my law library. Gotta catch 'em all..."

I thought about sending these references to the librarian with the caveat that her library may wish to consult with an attorney for legal advice.

Have any of you had similar questions, or do you have information to add?

Best regards,

Christine McNew
Youth Services Consultant
Texas State Library and Archives Commission
PO Box 12927
Austin, TX 78711-2927
512-463-4856
512-936-2306 fax
www.tsl.texas.gov<http://www.tsl.texas.gov>

________________________________
Katie Anderson, Youth Services Consultant
Library Support and Development Services<http://www.oregon.gov/osl/LD/pages/index.aspx>
Oregon State Library, 250 Winter St. NE, Salem, OR 97301
katie.anderson at state.or.us<mailto:katie.anderson at state.or.us>, 503-378-2528
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