Most people recognize January 1 as New Year’s Day, typically a day of rest after a heavy night before. But January 1 is also known as Public Domain Day, which marks thousands of copyrighted works entering the public domain. This year's notable entrant in the US Public Domain is Steamboat Willie, a 1928 short film featuring the earliest depictions of Disney’s Mickey the Mouse and Minnie the Mouse characters. 

This means the images used in this short film, including Mickey and Minnie, can now be shared, performed, reused, repurposed or sampled – great news for video game studios wanting to tap into the power of IP. As Vice reports, game developer Nightmare Forge Games announced its survival horror game featuring a grotesque version of Mickey the Mouse, Infestation Origins, shortly after Steamboat Willie entered the public domain. 

But does this mean video game developers now have free rein to use Mickey the Mouse in their video games? Not quite, as Peter Lewin, partner at IP, media and technology law firm Wiggin LLP, explains. 

“The issue here is that even if the original source material is no longer protected by copyright, subsequent books, stories, characters, adaptations, derivative works, remasters etcetera might still be protected,” Lewin tells us. “For example, while the very original version of Mickey Mouse from Steamboat Willie recently became public domain, subsequent portrayals of Mickey Mouse most certainly have not.”

This isn’t the only challenge facing video game developers wanting to explore public domain IP. Whether you’re counting down the days until major franchises such as Popeye and King Kong enter public domain in the next ten years or have your eyes on a smaller IP you see potential in, it’s important to bear in mind figuring out when a work enters the public domain can be a lot more complicated than most people might think due to lengths of copyright protection varying across the world. 

For example, literary works in the US created after 1 January 1978 are generally protected by copyright 70 years after the author’s death. For “works made for hire” (e.g. sound recordings) post-1978, it’s 95 years from the year the broadcast was first aired or 120 years from the recording data – whichever is shorter. The position for works made pre-1978 is more complicated. As the length of copyright protection can change across parts of the world, one work falling into the public domain in a specific country doesn’t mean it’s fallen into the public domain globally.

“That’s crucial for game developers to be aware of – you must ensure that the underlying work has gone into the public domain wherever you’re releasing your game. Which nowadays, basically means globally,” Lewin explains. 

And to make matters more complicated, there can sometimes be exceptions to the normal rules on copyright duration. Lewin cites the Peter Pan novel as an example, which is in the public domain in the US but not in the UK. 

“This is because J. M. Barrie transferred their copyright in Peter Pan to the Great Ormond Street Hospital for children before they died, and the UK government later implemented special legislation which means the hospital is forever entitled to receive royalties for all future performances of Peter Pan.”

Of course, it’s understandable that some game studios will want to tap into the power of well-established IP for their projects. Newzoo’s Games Market Trends 2024 report identifies nostalgia as a key trend driving the popularity of live-service games, and positioning your project alongside public domain IP with global recognition and a massive existing fanbase is a great way of driving awareness for your game. Would Infestation Origins have picked up the same levels of media coverage if Steamboat Willie wasn’t included? 

Lewin believes it’s likely we’ll see more video games based on public domain IP being developed over the coming years, but says the challenge for developers, alongside the potential legal pitfalls if they fall foul of licensing laws, is “how to ensure their project is good in its own right, rather than just relying on utilizing an old IP as more of a gimmick.”

He points to Lies of P, the Soulslike game developed by Korean studios Neowiz Games and Round8 Studio, as an example of that being done well. The game sold over one million copies in its first month and explores the tale of Pinocchio through a new and much darker narrative. As the online reviews pointed out at the time, this is very much Pinocchio meets Dark Souls. 

So, for any game studios wishing to explore the world of public domain IP, the secret to success so far is to innovate rather than replicate. On top of that, and perhaps most importantly, “speak to a lawyer,” says Lewin. 

“Games are incredibly expensive to make, and building a multi-million dollar product on an IP you don’t actually have the rights to use could be catastrophic. Aside from that, I’d encourage devs to think beyond the IPs which grab the most headlines, and explore the wealth of other excellent materials that could be available.” 

Less than a month into a new year and the video game industry is already experiencing its first Twitter storm. This time it’s Palworld, a survival video game bearing a striking resemblance to the Pokemon series, with some Twitter/X users going as far as calling it out for plagiarism. 

It’s these similarities that have led to the game being called ‘Pokemon with Guns’. Others argue differently and say that as far as gameplay mechanics are concerned, Palworld is nothing like a Pokemon game. Regardless, the game’s controversy has opened up a discussion on IP infringement in video games, but with much of this criticism coming from players and game developers rather than legal professionals, perhaps the biggest question is: does Palworld infringe on The Pokemon Company’s IP? 

Wesley Yin-Poole recently explored this in a piece for IGN, where IP lawyer Peter Lewin shared his expertise on the matter. Lewin breaks down what Nintendo could and might do next by exploring the three key questions in any copyright infringement case. 

• Is the original work protected by copyright? 
• Has the alleged infringer copied a substantial part of the original work?
• Are there any available defenses for claimed copyright infringement, such as parody or fair use?

The Pokemon games are, of course, protected by various copyright laws, but Lewin tells IGN that “ideas generally aren’t protected by copyright, but the particular expression of an idea can be.” He continues: 

“So one company can’t stop another from making a game about catching and battling monsters. However, if a company copies important aspects of how exactly another company expresses that game concept (characters, story beats, names etc), that’s where issues can arise. In this instance, the main focus seems to be on the Pal designs and 3D models, rather than the game concept as a whole.”

If Nintendo did decide to take action against the game’s development studio and publisher, Pocket Pair, it would need to prove that Pocket Pair infringed on Pokemon’s copyright, or depending on where the case was heard, Pocket Pair could have to prove that they didn’t copy the work. 

One of the reasons there’s so much interest from the gaming community in this developing as a potential scenario is Palworld has been an enormous success. Since its release on January 19 this year, the game has already sold over five million copies. If legal action was taken by The Pokemon Company, the game could be pulled from sale. But how likely is that to happen on the basis of everything we’ve seen and know about the game so far? 

Lewin says there can be a number of considerations that go into deciding whether or not to pursue another party for infringement. Speaking to us, he says: 

“Obviously there’s the legal basis (i.e. do I think I have a strong case to prove infringement), but there’s also cost, jurisdictional issues, competing internal priorities, brand reputation etc. As such, it’s hard to predict with certainty how different IP owners will react when they feel another work is too close to the bone.”  

It can be easy to get caught up in the middle of a debate surrounding a well-known video game. Over the last few weeks, we’ve seen plenty of hot takes from LinkedIn experts and video game industry professionals who have asserted with the utmost confidence that Pocket Pair has plagiarized Pokemon designs. It’s worth bearing in mind the consequences of serious allegations such as these: those working on the game have said they’ve received death threats due to the negative publicity. 

Our advice in times such as these, especially when the video game industry is facing so much hardship, is to let the legal experts decide what is and what isn’t foul play – not social media users!