EA Invokes First Amendment Protection For Video Games In Trademark Dispute

Electronic Arts is asking a federal judge to rule that it has a First Amendment right to depict real-life military helicopters in video games such as Battlefield 3 without the permission of the aircraft's maker.

The action, basically a pre-emptive lawsuit against Textron, the parent company of Bell Helicopter, comes after discussions between the two sides broke down, according to a copy of the suit obtained by Kotaku. The suit was filed Friday in federal court for the Northern District of California.

The lawsuit says that on December 21, Textron lawyers demanded that EA cease its depiction of three Bell aircraft in Battlefield 3. "The parties have been unable to resolve their dispute," EA's complaint says. "EA therefore has a reasonable and strong apprehension that it will soon face a trademark and/or trade dress action from Textron."

Electronic Arts asserts that its depiction of the three aircraft "are protected by the First Amendment and the doctrine of nominative fair use". EA notes that Battlefield 3's packaging features a disclaimer stating that the appearance of real-world weapons and vehicles does not constitute any official endorsement by their maker. It adds that "the Bell-manufactured helicopters are not highlighted or given greater prominence than any of the other vehicles within the game."

"The Bell-manufactured helicopters depicted in Battlefield 3 are just a few of countless creative visual, audio, plot and programming elements that make up EA's expressive work, a first-person military combat simulation," says the suit.

Electronic Arts' pre-emptive action would seem unusual were it not for June's landmark Supreme Court ruling that video games have the same free speech protections as other expressive works such as film, books and music.

Since the Supreme Court ruled, EA has prevailed in a somewhat similar matter involving the unlicensed use of likenesses. In September, a federal judge ruled that EA's recognisable, if unnamed, depiction of a real college quarterback, without his permission, was within the boundaries of its rights to free expression.

EA does negotiate licenses with athletes, individually or collectively, to appear in other titles; it is prohibited by the NCAA from licensing or compensating currently eligible college athletes, under NCAA amateurism rules. EA has licensed numerous real-world automobiles to appear in its Need for Speed series. The difference here seems to be that the vehicle fleet is central to Need for Speed's purpose, where it is not in Battlefield.

The three helicopters in question are the AH-1Z Viper, an attack helicopter (pictured above); the UH-1Y, a multipurpose/transport helicopter; and the V-22 Osprey, (jointly produced with Boeing) whose distinctive tilt-rotors allow for vertical and short takeoff and landing.

Kotaku has contacted representatives of both Electronic Arts and Textron for comment. Any they make will be updated here.


Comments

    If anything it's great that these helicopters are in bf3, free advertising.......who wouldn't buy one if they were an eccentric billionaire :-P

      i dont think these companies are really concerned with advertising. Pretty sure the Military reps etc are well aware of these pieces of equipment.

    If anything it's great that these helicopters are in bf3, free advertising.......who wouldn't buy one if they were an eccentric billionaire

    It's interesting that this is a problem. Are the helicopters actually referenced by name in the game?

    Games have long gotten away with including direct copies of real-world cars and guns by just changing the names, so I wonder why helicopters would be any different.

      Also, for that matter, could the helicopter manufacturers sue a film studio that bought one of their products for use in a movie? I guess in that case they at least got paid for the helicopter, but its usage is the same.

      What about all the guns that get used in these games... are they licenced too?

        I always thought that was why they changed the gun names in CS when they went from 1.5 to the commercial model of 1.6. ie Deagle > Nighthawk, AK47 > CV47, Steyr Aug > Bullpup etc etc. Maybe Valve anticipated the shit stirm and cbf with it.

    The choppers are named and described in full within the game. They may not be central to the game but without them BF3 would be one step closer to being the point and shoot affair of MW3. I for one do not want that to happen so I hope they sort this out.

      Worst case, they'll just rename them slightly, Pro Evolution Soccer-style.

      I, for one, look forward to wreaking havoc with an Achape attack helicopter..

        "Achape attack helicopter"... ROFL

    They might have licensed some but for the majority they didn't. They just used some slight re-jigging of the names by dropping the manufactuerer from the full name. for example:

    M416 is the prototype name for the H&K 416
    F2000 is from FN2000
    M249 is the US army adopted name for the FN Minimi. Aussies call it the F89.

      bah, that was in reply to James Mac

    Interesting little legal stoush. Could have dire ramifications for all military shooters out there if it goes against EA. Imagine CoD becoming an unprofitable venture because they had to pay say 10 gun companies millions of $$$ each just to use a weapon's likeness. Then you've got vehicles, body armour and even night vision goggles - all those manufacturers could foreseeably get involved wanting a piece of the pie.

    Pure entertainment commericalism is one thing but I wonder how other studios like Bohemia who have done simulation work for real world military forces could get around it?

    well even if EA lost
    they can just change the skin and make it look a little different !!

    They're in the business of military hardware, fuck 'em.

    Wait, im pretty sure that the V-22 Osprey is nowhere to be seen anywhere in the game.... I have played extensively on the multiplayer, and finished both the Co-Op and the Singleplayer, and not once seen a V-22.

      You sure you played the single-player? It's in there.

    The Osprey is only shown in the Single Player side of BF3 isn't it? and it's only breifly? unlike the other two that are in the Multiplayer a lot.

    V-22 Osprey? What fucking game have i been playing? I have never seen the Osprey in BF3??? PLEASE EXPLAIN

      ! SPOILER !

      I pretty sure the Osprey is your extraction while after the earthquake in the city and you need meet up with the group of bummers.beeing swarmed by the PLA.

        Well that post was a complete fail!

        I think the Osprey is your extraction after the earth quake level!
        There...much better.

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