Players hunting for virtual creatures could end up facing real-life civil or even criminal liability.
The mobile game Pokémon Go became incredibly popular in just a few days, in Poland and everywhere else. The game uses a technology of augmented reality (AR). With maps and GPS, it overlays computer-generated 3D graphics and sound onto the real world as seen by a smartphone camera. To become a Pokémon trainer, the player has to put on sturdy shoes and head out for a real, live walk through the woods and around the streets.
Pokémon goes where angels fear to tread
Every step in the real world corresponds to a step in Pokémon Go. So actions taken in the game can exert real effects and have real consequences—including legal consequences. Pokémon Go can lead players to places they would not ordinarily reach and encourage them to do things they would never dare if not appearing as an avatar in computer-generated graphics. So while capturing and training Pokémons, the player can run afoul of various regulations of civil or even criminal law.
Pokémon panorama—a copyright issue
PokéStops and PokéGyms are points in the game located in interesting, actually existing places, typically in architectural structures such as landmarks, monuments, bridges, buildings or murals. At PokéStops the player can find Poké Balls and other items needed to capture Pokémons, and the player can train Pokémons in the PokéGym. The problem is that such architectural structures are often regarded as works for purposes of copyright law. Thus a question arises concerning permissible use of images of such structures.
The freedom of panorama is fairly broad in Poland, compared to other European countries. Under the Polish regulations, releasing photos of Pokémons against the background of building interiors and works displayed in interiors could be the most problematic. This could mean, for example, restaurants, train stations, airports, post offices, banks, churches, public buildings, shopping centres, and constructions found in them, such as flower arrangements or sculptures. This is because freedom of panorama in Poland covers only works displayed in a free, open, publicly accessible space. But as long as the user does not disseminate such a photo, this is not a concern.
Personal rights of third parties
If a player publishes a photo which includes, in addition to a captured Pokémon, the image of a bystander who has not consented to use of his likeness, the player could be exposed to civil liability.
Another risk relates to the appearance of Pokémons at sites of particular historical or cultural significance, such as the Auschwitz-Birkenau Memorial and Museum in Oświęcim. Merely hunting or training Pokémons in such locations, not to mention releasing pictures of these sites with Pokémons, could be deemed to offend the dignity and memory of Holocaust victims and lead to enforcement of civil provisions on protection of personal interests. A similar problem arises in the case of capturing Pokémons in places used for religious purposes, such as cemeteries or houses of worship. In such instance there might be a violation of personal interests in the form of the dignity of the deceased. Art. 196 of the Criminal Code, imposing criminal liability for offending the religious sensibilities of others, could also come into play.
Playing on other’s property
In the quest for Pokémons, a player might enter real estate belonging to another person. Then the player could face civil liability. It should be considered whether the owner, possessor or tenant of the property could then, to protect his property, use necessary force against the player under Art. 343 §1 of the Civil Code. Additionally, in this situation the player could also be subject to criminal liability under Art. 193 of the Criminal Code, which prohibits trespassing and unlawful interference with domestic tranquillity.
Practice has shown that players looking for Pokémons can cause various types of hazards, for example by wandering onto the tarmac at an airport or causing an automobile accident. In such instances the player could face criminal liability, e.g. for an offence against transportation safety under Art. 173 or 177 of the Criminal Code. In the case of Pokémon Go, Art. 45(2)(1) of the Road Traffic Law, prohibiting the use of a hand-held telephone while driving, takes on practical significance. This is a punishable violation under Art. 97 of the Petty Offences Code.
The other side of augmented reality
The legal risks connected with the player’s liability, although potential broad, are relatively easy to identify and do not raise major doubts. The issue of the liability of the producer of the app is much more controversial. Doubts from the perspective of copyright law are raised by Pokémon Go’s use of architectural objects as locations for PokéStops and PokéGyms. Pictures of the structures are displayed for the player together with information about the landmark or site. It may be wondered what significance under copyright law there could be in introducing certain computer elements into the field of view and then superimposing and aligning them on works protected by copyright.
On top of this, there is the issue of the personal data gathered in connection with use of the app. The app collects data, including location data. There is already an increased risk connected with protection of such data and its unauthorised use not only by advertisers, but also by criminals, ISIS (e.g. tracking the route taken by potential victims, or locations where military units are posted) or cyber stalkers (login data, passwords). The same applies to infringement of privacy in connection with potential access to the player’s contact data or multimedia.
The fact that the game uses augmented reality raises questions about the liability of the game’s creators for very real injuries suffered by the player while trying to capture Pokémons—from sunburn to trip and fall or getting run over by a car. It should also be considered whether under Polish law the game’s creators could be liable for locating PokéGyms in houses of worship or on private land. Indeed, a lawsuit has already been filed in the US. The plaintiff alleged trespassing on his property, claiming that the producers must obtain permission to locate a PokéStop or PokéGym on the property.
Even if Pokémon mania burns out quickly, augmented reality will be put to various uses, not just games, although at first that will probably be the most popular use for AR (the Russians have already created their answer to Pokémon Go, featuring Ivan the Terrible and Napoleon). AR also has other applications; for example, it has been used for several years in the production of car windshields. So the potential issues connected with this technology may be numerous.
Lena Marcinoska, Intellectual Property Practice, Wardyński & Partners
The article is a part of the New Technologies Newsletter, July-August 2016