If I add a copyright disclaimer to my app, am I exempt of charges?

Question

I'm creating a Pokemon Wiki app for Android with a lot of data related to Pokemon, including images, names etc. I've seen in the Google Play store a lot of apps like mine that contains ads and in-app purchases. Also, I've noticed that all these apps have a disclaimer section where they indicate that

This app is not affiliated, endorsed or supported by Nintendo in any way, also some images used in this app are copyrighted and supported under fair use, Pokemon and Pokemon character names are trademark of Nintendo, no copyright infringement intended. Pokemon (C) 2002-2020 Pokemon.

If I add this disclaimer to my app, will it be enough to avoid getting involved in serious legal problems with copyright and Nintendo if I add ads and in-app purchases to my app? The apps mentioned before have been in the store since 2015 and they haven't been removed yet.

Also I want to know if I'm protected in some way. I don't mind if Nintendo takes down my app after 1 year in the Google Play store, I'm only scared if they take legal actions against me and I have to pay money or go to jail.

Answer 1

Imagine if the answer was a simple yes: adding a disclaimer was enough to exempt you from any and all copyright and trademark law suits. If that was the case, there would be no point in copyright or trademark law at all, because everyone could just include this disclaimer and never be sued.

That doesn't mean every disclaimer is useless, but it does mean that copying and pasting some vague wording without understanding what it means is very unlikely to help you very much. The example you give is a good example of doing just that; the terms it uses are real, but they've clearly been thrown together without real understanding:

• Copyright is the right to control and profit from a creative work. This is relevant because images of Pokemon characters created for games, manga, etc are copyrighted by their creator.
• Trademarks are words, symbols, images, etc exclusively associated with a particular company or product. Trademark law aims, among other things, to avoid customers thinking they are getting an official product when they are not.
• "Nintendo" and "Pokemon" are both themselves trademarks. They are also the names of different companies. My limited understanding is that "The Pokemon Company" will be the owner of all the copyrights and trademarks related to those games, manga, etc. Naming them is a way of showing that you have researched this and understood their rights.
• "This app is not affiliated , endorsed or supported by Nintendo in any way". This is a disclaimer on the trademarks. Whether this is sufficient to protect against claims of counterfeiting depends on how prominent it is compared to other branding - you need to make it obvious to users that the product is unofficial, not bury this in small-print for the lawyers to find.
• "also some images used in this app are ... supported under fair use" - fair use is a US legal concept which allows copyrighted works to be used in certain specifically limited ways. Saying your use is covered does not make it true, you need to actually understand what provisions of the law allow your specific use.
• "no copyright infringement intended" This is a fluffy apology that has no legal standing. A more useful statement might be "every care has been taken to adhere to copyright and trademark law, if you notice a violation please contact X"; but you're still relying on goodwill, and it won't stop someone sending the lawyers in if they decide to.

Which brings us back to the real question:

The apps mentioned before are in the store since 2015 and they haven't been removed yet.

The real reason for this has nothing to do with the poorly-written disclaimers, it is that Nintendo / Pokemon co haven't bothered. If an app is directly competing with an official app, or receiving a lot of attention (even if no money), the lawyers will descend; if it's a buggy image gallery with a dozen downloads, they might decide they have better things to do. If they do notice, they might just get Apple and Google to de-list the app, but not spend the time and money pursuing a legal case.

On the other hand, at any time they might decide they need to tighten up control of their intellectual property, and make an example of a few authors picked at random. The only way to avoid that is to actually avoid violating their rights, rather than just saying so in a disclaimer.

Answer 2

"No infringement intended" is meaningless. One of these things is true:

1. The copy isn't an infringement.
2. The copy is an infringement, and the responsible person knows it.
3. The copy is an infringement, and the responsible person doesn't know it because of ignorance about the law.
4. The copy is an infringement, and the responsible person doesn't know it because of an incorrect interpretation of law or fact.

In the first case, all is well, and the disclaimer is unnecessary. In the second case, the disclaimer is a lie. In the third case, ignorance of the law is no excuse. In the fourth case, the disclaimer should say something more specific about the reasons that supposedly justify the copy.

Answer 3

Neither the disclaimer nor the ads make any real difference. Using Nintendo-copyright images is potentially copyright infringement. Regardless of whether you earn money for it or put a disclaimer claiming that it's unintentional.

It's very unlikely that you'll see any repercussions from this, but it's not completely impossible. Nintendo certainly do go after fan-made games using Nintendo characters.

Answer 4

That disclaimer really doesn't do much other than make it clear that what you're doing is not official. It isn't going to protect you. Using a company's intellectual property without their permission is a risk. Period.

Is it infringement? Probably. Will you get sued? Probably not. Will you get a cease and deist letter? Maybe. I'm willing to bet you wouldn't because Bulbapedia and other fan wikis have been around for years with no action against them from the Pokemon Company or Nintendo, but that is not legal advice.

There's a long history of how intellectual property is treated in practice for fan works: a great deal of indifference until it's highly visible blatant infringement. Since IP is settled on civil grounds rather than criminal, it's often not worth the trouble to go after every fan artist and fan site for every little thing. They certainly can in most cases because IP law very heavily favors the rightsholder, but due to the huge blow that would be to their PR if they did it for every little thing, most entertainment giants reserve their C&Ds and DMCA ban hammers for the highly visible infringement cases and attempts to sell products using their IPs without express permission.

A good rule of thumb: if you think it might be infringement, it's probably infringement. Like it or not, IP is extremely protective and the way that fair use works means you should probably have a good lawyer ready if you seriously want to go down that route and defend it in court, since that's technically the only way that fair use can actually be applied. Outside of that, you can only count on the good graces of Nintendo to look the other way and hope that de-facto fair use is good enough. And if the C&D comes to your inbox? You're probably best off complying and then moving on with your life, no matter how "in the right" you believe you are. Defending fair use is almost certainly going to be more expensive than a takedown or licensing fee.

Keep in mind that even Weird Al gets permission before he does his parodies. He probably doesn't need to since parody is protected under fair use, but doing so avoids all possible legal hazards and lengthy court cases he'd probably rather not be involved with.