In our ‘Oh, Really?’  feature, the Biederman Blog’s editors and alumni— voracious consumers of trendy matters — cast a curious, skeptical, fun and smart end-of-the-week eye on popular culture and its entertaining products, sharing their keen observations about legal matters these raise.

Who knows how many millennials and youngsters spent the long Labor Day holiday chasing Pikachu, Eevee, and Jigglypuff? Who knows how many will race out this weekend to pursue Squirtle, Bulbasaur, and Charmander? And where’s Tauros or Mr. Mime?

“Gotta catch ‘em all, Pokémon!” rang out the ’90s theme song every Saturday morning on the cartoon show iconic to a  generation fully coming into its own. Now, history is repeating itself, as  kids, teens, and, yes, some adults repeat that tune as they zip around trying to “catch” Pokémon on the hot smart phone game app Pokémon Go.

To hear fans of Pokémon Go tell it, its rising technology–augmented reality (AR)–promises everything from mesmerizing new diversions  to innovative ways to present information and content to 100 percent Bar pass rates. But AR, as happens with many novel entertainment technologies, also has run smack into legal reality.

Augmented reality

AR games “encourage players to travel throughout the real world and enable them to interact with digital characters and objects programmed to appear as if they exist at specific points in physical space,” explains The Hollywood Reporter. This is crucial to Pokémon GO, in which players visit real-life locations to find, capture, and train the aforementioned digital creatures from the Pokémon universe.  This has transformed AR, which has been around for a while, and its cousin, virtual reality, into a technology that many enthusiasts term the next “big thing,” and a huge influence on tech advances.

But even as Pokémon frenzy started gripping the globe this summer, lawyers warned in the ABA Journal that this sizzling entertainment phenomenon would come with legal issues. The journal cited the work of Alabama lawyer Keith Lee, writing at his Associate’s Mind blog, who asked:

  • Does placing a Pokémon character on a private property, without permission, effect the owner’s interest in exclusive possession of the property?
  • Does it create an attractive nuisance?
  • Does owning real property extend property rights to intellectual property elements that are placed on it?
  • Is there liability for placing the characters on private property or in dangerous locations?”

The Hollywood Reporter warned that app and AR misuse or abuse raises “myriad other concerns as well, including decreased employee productivitytrespass, players stumbling across crime scenescriminals targeting players and risks to minors. (Of course, there are upsides as well — including introducing couch potatoes to exercise.)” The Telegraph in London pondered if Pokémon play could get British youth busted.

Pokémon’s legal woes

So far, media reports have cataloged at least one Pokémon lawsuit, which also seeks class action status, as well as lots of complaining about nuisance players, odd situations involving them, and threats of more litigation. A tip of the cap to the Polygon site for posting New Jersey resident Jeffrey Marder’s civil suit.

It is, of course, just a legal claim for now. But it has prompted further intriguing legal analysis, and, to be sure, the game’s maker, Niantic, has allowed the public to contact it to oust specified Pokémon sites that might be distasteful, inappropriate, or unsafe, prompting other complaints about the ease with which this feature removes fun locales from character-hunting consideration.

How protected or what legal protections do Pokémon players have with or from Niantic and otherwise?

They have a First Amendment right to pursue the game in public, the tech blog Venture Beat says. States and cities craft their own and varying trespass laws and loitering laws. But the First Amendment gives Americans the right to travel freely, the blog says.

Niantic and others in the gaming industry also enjoy “the protection of the First Amendment when it comes to free expression, but Pokémon Go is one of the first games to [test the ] legal right of assembly,”  Venture Beat says, adding that Niantic has constitutional protections to turn private property into “in-game locations.”  The theory is that there’s no legal cause of action when an app creates a “virtual sign,” such as marking where virtual characters may be and even putting them there, virtually.

As for Niantic and its customers, most of them waive legal recourse with the company soon after they even download the app. TechCrunch, the online news site, notes that many users waive their rights with the initial terms and conditions of Pokémon Go. Users get 30 days to keep their rights; otherwise many of them, if found liable for any legal concerns somehow tied to the technology, lose any right to jury trial against Pokémon Co. and developer Niantic, as the app T&C informs in an arbitration clause:

ARBITRATION NOTICE: EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “AGREEMENT TO ARBITRATE” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND NIANTIC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING