Pokémon Go or Pokémon Stop? Assessing the Legal Issues

The latest craze in America is Pokémon Go, a game based on the classic video game from the 1990’s now played on your smartphone.

The premise is simple: players walk around cities and use the camera function on their smartphones to “find” Pokémon, which are monsters that can be caught by “trainers” (i.e., players). The game places an animation featuring the Pokémon over the real-life environment, so you can actually see the Pokémon “in the wild,” and catch it. This is the first widely-popular use of augmented reality, which uses computer software to merge virtual reality with real-life surroundings.

The fact that you can find Pokémon around actual landmarks has made the game wildly popular. Millions of people (Pokémon Go recently set a record for all-time digital app downloads) can be seen scouring their cities on their phones, looking for Pokémon in front of banks, office buildings, schools, restaurants, parks, and – controversially – private homes, police stations, government buildings, and the middle of the street.

Players can take it to another level by purchasing “lures” to attract Pokémon and digitally placing them on “poke stops” located at places of interest – which attracts other players to congregate around that location in search of Pokémon.

News stories like this one, in which a cemetery on Staten Island was repeatedly broken into by players looking for these elusive monsters, have raised questions about the legal issues that might arise from the game’s widespread popularity.

What are legal questions that have developed as a result of Pokémon Go?

TRESPASSING, INTELLECTUAL PROPERTY, AND POKÉMON

America has a long tradition of protecting private property. This includes protecting against trespassing and unwanted incursions into private space, like homes. It’s clear that homeowners, for example, have a legal right to keep players off their property – and indeed, some homeowners across the country have threatened to press charges against players caught searching for Pokémon on their property.

Protecting against trespassing is fairly easy to understand. Even while playing a game, players don’t have the right to unlawfully enter someone else’s property.

But what about virtual property? Does a private owner “own” the intellectual property that is found on their premises? In other words, if a Charizard – a type of Pokémon – “appears” on my front lawn, do I “own” it – and can I keep other players from obtaining it without permission?

IS POKÉMON AN ATTRACTIVE NUISANCE?

Additionally, there is the legal concept of an attractive nuisance. Simply put, landowners can be held liable for injuries caused to children who trespass on their land due to the presence of an object that can reasonably be expected to attract children. The classic case is a swimming pool on someone’s property that isn’t secured against trespassers. Children are naturally attracted to swimming pools and have been known to enter one if there’s no fence or other barrier to entry. In these cases, the owners have been found liable for children who have drowned in their pools.

Arguably, the game creates an attractive nuisance, if we go by the legal definition of the term. Children do play this game, and one could argue that a child who is injured on private property because he or she tried to catch a Pokémon that was found on the property was a victim of an attractive nuisance – even if the nuisance in question doesn’t tangibly exist in the real world.

The question becomes whether or not a property owner can be held liable for a nuisance that he or she did not place on the property, but instead was placed there by a third party without his or her consent. A related question is whether a property owner’s risk of being held liable increases if the property owner does something to attract the Pokémon to his property, such as placing a “lure.”

For its part, the company behind Pokémon Go disclaims liability for any personal injury or property damage incurred by players as a result of playing the game. It has yet to be seen, though, if the company’s disclaimers will stand up to legal scrutiny in court.

ASSESSING THE LEGAL FUTURE OF POKÉMON GO

The field of augmented reality is a new one, and the legal challenges that will inevitably flow from its popularity have yet to be decided.

Until stalled by a lawsuit that wins, though, it’s likely that Pokémon Go will only grow in popularity – until it is replaced by some unforeseen new craze that sweeps the nation. In the meantime, if you see people wandering around the city staring at their phones, they’re not necessarily texting or watching YouTube videos; they’re probably on the hunt.