Electronic Arts and the makers of Bell Helicopter, have settled a lawsuit concerning the use of real-world aircraft in Battlefield 3, for which EA did not have permission. The publisher had asked a judge to rule it had a right to the depictions because they were part of a creative work protected by the First Amendment.
Terms of the settlement were not disclosed in the latest filing on the lawsuit, but the case was dismissed with prejudice, which means it can't be brought again. The action was brought in January 2012 after negotiations between EA and Textron (Bell's parent company) broke down. EA reasoned that a film about the U.S. military doesn't have to pay royalities to Textron for using its aircraft, so why must a video game? The question appeared to probe the new boundaries of video games as protected works of free expression, a designation explicitly made by the Supreme Court in mid-2011.
EA has made the First Amendment defence in another, more pressing case, the one former college quarterback Ryan Hart brought against the company for what he alleges is the unauthorised and uncompensated use of his likeness in EA Sports' NCAA Football series. EA originally prevailed in 2011 on that claim, but a federal appeals court in May overturned that decision and sent the case back to district court. Last month, the defence was rejected by a federal appeals court in a separate matter brought by another college quarterback, Samuel Keller.
Kotaku has reached out to an Electronic Arts spokesman to ask why EA settled the case it brought, especially as creative freedom and not necessarily money appeared to be the primary dispute. We didn't get a reply by the time of publication. Any comment EA makes will be updated here.
The fact EA is using a First Amendment defence in two different districts almost guarantees the matter will end up before the U.S. Supreme Court to be resolved once and for all. Its legal division may have judged the fight with Textron to be either redundant or needlessly expensive. Textron also had made counterclaims of trademark infringement, which a judge allowed to proceed in July 2012.
Despite assurances to licensing partners it doesn't intend to use a favourable ruling to unwind the lucrative contracts behind games like Madden NFL, this First Amendment defence has put EA at odds with several professional sports players' unions, including the NFL Players' Association, to which EA has paid around $US30 million annually (though for some reason, the figure dropped to $US2.1 million in the most recent fiscal year, possibly because of reworked payments in light of the 2011 NFL lockout.)