Knowledge & News

Tom Nook and the IP rule book

19 June 2020

Rebecca Campbell takes a whimsical look at the impact of virtual interest rate cuts and a lack of IP lawyers in the world of Animal Crossing.

A virtual interest rate change in the Nintendo video game Animal Crossing: New Horizons has made quite the impact in recent months, attracting front page coverage from the Financial Times (FT) in a satirical article. There was much for the newspaper to discuss, as a surprise bank rate cut in a mandatory software update now encourages players to raise money through riskier activities, such as farming poisonous tarantulas and scorpions or investing in the game’s turnip Stalk Market. Even Eternal Sunshine of the Spotless Mind and Lord of the Rings actor Elijah Wood has had to diversify, visiting a stranger’s island in order to sell his turnips at a higher price. But amongst all this talk of tropical banks and turnips, one intellectual property (IP) nerd can’t help but wonder if there are any IP issues facing characters in the game…

Top dog

It was no accident that the FT chose to write about this particular game. The Japanese franchise Animal Crossing is one of the most popular in Nintendo’s history. Its latest edition, New Horizons, sold 5 million digital copies in March and broke the console game record for most digital units sold in a single month.

Released shortly before the UK entered a formal lockdown due to Covid-19, its popularity has no doubt been assisted by busy parents trying to maintain sanity and entertain children while working full-time from the dining room table. But the game is not just for children – many adult fans have praised the game’s relaxing atmosphere, and readers can surely empathise with the fantasy of getting as much outdoor exercise as one wants.

In the game, players are invited to live in a tropical paradise by enterprising anthropomorphised raccoon dog Tom Nook, as part of his company’s “Deserted Island Getaway Package”. The island gradually fills with companionable animal neighbours and the player helps Tom Nook improve island life over time. It is a cultured place, with visiting canines K.K. Slider and Harvey offering live musical performances and photography experiences. Eventually, civilization develops in the form of a museum, a fashion boutique, and a shop where characters can buy anything from furniture and wallpaper to a pet hamster.

Chickens come home to roost

Deserted islands tend to have a shortage of neoclassical paintings and sculptures, so the player buys art for the museum from a shifty-looking fox character named Jolly Redd. Unfortunately, for cartoon foxes everywhere looking to defy typecasting, Redd is as untrustworthy as he sounds. In addition to authentic originals - such as the ‘the ‘Gallant Statue’ (David by Michelangelo), ‘Proper Painting’ (A Bar at the Folies-Bergere by Manet) and ‘Informative Statue’ (Rosetta Stone) - this vulpine trickster offers fakes. Players must be careful not to buy a painting of a girl with a star earring or an angry Mona Lisa.

Under European practice, musical compositions, photography, paintings and sculptures can all benefit from copyright protection provided they are original in the sense of being the expression of the author’s own intellectual creation. The game’s Jack Russell minstrel is quite talented, but there is no requirement for the copyright work to be good. Even the devious fox could enjoy copyright in certain derivative works. These artistes don’t need to do anything as copyright arises automatically. It also lasts for 70 years after the creator’s death in most cases, so Michelangelo is unlikely to be bringing an infringement claim against the fox for his butchery.

A charge of handling stolen goods on the other hand, could be bad news for player, fox and curator…

Go the whole hog

A family of hedgehog haberdasheries, tailors and fashion designers work hard to supply the island with hats, clothes, shoes and even wigs.

One of the hogs is a budding fashion designer who may gift the player with her bespoke Labelle sunglasses. For a fashion label, the trade mark Labelle is perhaps not the strongest choice because trade marks can’t be registered if they are exclusively descriptive of characteristics of the goods or services sold under them. The hedgehog would do well to consult an IP lawyer even at this early stage in her career. It is important not only to protect her own brand, but to make sure that she doesn’t infringe others – some of her work look suspicious likely that of a famous Italian fashion house[1].

One of her sisters, meanwhile, spends her days designing new fabrics and slaving over a sewing machine. She might also benefit from copyright, but registered design rights should be considered if her designs are new and original. This would protect the appearance of the whole or part of her product, which arises from its features, including colours, lines, and so on. A UK or EU registered design right would allow her to stop anyone else using her patterns and other clothing designs, whether or not there has been copying.

Curiosity kills the cat

The animals of the player’s island are industrious. Occasionally, as the player goes about their business, they might come across a neighbouring cat or monkey crafting something. There are no trade secrets here, as the generous creatures are keen to share the details of whatever invention they’ve come up with.

Where an invention involves a new product or process, or a new use of a known product, it may be able to benefit from patent protection. It must not be an obvious development of a known product or technology, and it must have practical application. Unfortunately, the disclosure of the invention to the player might invalidate any patent application filed so the animal inventors should be speaking to their IP lawyers whenever they invent something that could be commercially useful. They may wish to ensure non-disclosure agreements are signed to protect the confidentiality of the inventions.

In some cases, even where the invention is not patentable, other rights may apply, so the animals should have the conversation with their lawyer sooner rather than later.

Perhaps some forward-thinking animals, such as bespectacled hipster cat Raymond, are ahead of the curve and have already submitted patent applications. The player’s character should be wary not to infringe any patent or other intellectual property rights, for example by selling products constructed using these recipes. Unfortunately, this is all too enticing on the island, where Tom Nook’s shopkeeper associates, Timmy and Tommy, ask no questions.

Kangaroo courts

Of course, all of this assumes that the islands are part of some sensible legal jurisdiction. The game is vague on geography, asking the players at the start of the game only to indicate whether they wish to move to the north or south hemispheres. Are they British Overseas Territories? Probably not – the Queen would probably not be happy with the player changing the island anthem to the Game of Thrones theme tune. Some tax haven in the Caribbean? There is no guarantee that the islands recognise any intellectual property rights or rule of law at all. Perhaps, in this animal autocracy there are no laws or lawyers…

The writer shudders at the thought.

[1] In real life, designers are keen to get in front of the hedgehog haberdasheries. Marc Jacobs and Valentino recently collaborated with the Instagram account @animalcrossingfashionarchive to create designs specifically for the game.

Authors

Rebecca Campbell

Rebecca Campbell Associate London (UK) Glasgow (UK) Chartered (UK) and European Trade Mark Attorney

You may also be interested in...

.
Small business going international
Article

Small business going international

Obtaining robust IP protection in new markets

.
Articles

Canada Day ushers in US-Mexico-Canada Agreement

USMCA comes into force July 1, 2020

POSTED 1 July 2020

Find the right person

Find the office that suits you

Click here to view our offices

>