Activision Says A Call Of Duty Lawsuit Is "A Direct Attack On The First Amendment"

Back in 2017 AM General, the manufacturer of the iconic Humvee, sued Activision over the military vehicle’s inclusion in the Call of Duty series. That case is still rumbling on, but Activision is now trying to have it dismissed as “nothing less than a direct attack on the First Amendment.”

As The Hollywood Reporter report, Activision’s filing last week begins with:

This case is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare. AM General LLC (“AMG”), a government contractor that manufactured military “HMMWV” (or “Humvee”) vehicles for the U.S. military, seeks to use trademark law to control the mere depiction of those vehicles in Defendants’ fictional Call of Duty video games.

The use of purported trademark rights to restrict the content of expressive works is dangerous under any circumstance. But the claims in this case are particularly egregious because they involve a U.S. military vehicle paid for by American taxpayers and deployed in every significant military conflict for the past three decades.

As such, Humvees are a fixture of the modern U.S. military and are a logical part of any attempt to tell an authentic story about modern war. Humvees also have cultural and historical significance that has absolutely nothing to do with AMG or its manufacturing process.

To allow AMG to pursue its claims would run directly contrary to the First Amendment and give AMG a stranglehold on virtually any expressive depiction of 21st Century U.S. military history.

AM’s response, submitted on the same day (May 31), meanwhile opens:

Defendants Activision Blizzard, Inc., Activision Publishing, Inc., and Major League Gaming Corp. (collectively, “Activision” or “Defendants”) have made billions of dollars by using AM General’s iconic HUMVEE® military vehicle and its distinctive trade dress (the “HUMVEE® Trade Dress”) in eight Call of Duty video games, numerous ads, two toys, and several strategy guides. Activision neither sought nor obtained permission from AM General to do so. Activision’s conduct constitutes, among other things, trademark and trade dress infringement under the Lanham Act.

It’s an interesting case, the outcome of which could have big ramifications not just for video games, but TV and film as well.

I’ve mainly just shared it here though because “a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare” is the most video game legal jargon imaginable.


Comments

    I dunno, when these vehicles are used in public military contracts and such, it seems wrong to try and ping every single company on mentioning humvee etc..

    I could understand if it was a commercial product only but its a public military product being used all over the world in conflict zones.. If we use this standard of restricting use unless you pay up it means all the vehicles used during WW2 and onward fall under this guise thus every game featuring military vehicles used in conflicts would be open to absolutely huge lawsuits.

    And what would happen is companies making these games would just change the vehicles looks and names and thus we end up with completely unhistorical representations.

    A line in the sand must be drawn, if your product is being directly marketed to the military and contracted in conflict zones, then its image/representation is public domain regardless of how RICH a company might be whom uses them..., my 2 cents..

      Historical vehicles are one thing amd should be allowed. Ala RDR2 and the pinkertons. But the humvee is still in production and use, it's still an iconic brand being market with a value on said marketing. Any other media that uses it are bound to pay a licensing fee why shouldn't activision.

      Yeah, I can't believe I'm saying it, but I'm sort of in Activision's camp on this one. If Activision lose this one, then it opens up Pandora's box in regards to companies wanting a piece of the action for any war game ever made.

      Guns have more on-screen time than the vehicles, so can the gun manufacturer's of the weapons used start suing? Or the manufacturer of the infantry clothing?

      Assuming Film / TV could fall under the same aspects as video games, we could lose historical accuracy of said events.

        Actually gun manufacturers have already forced licensing on video games. All Payday 2 weapons have names similar to but not the same as the real life counterpart because of it.

        Film/TV would fall under the same legislation *but* 99% of those already get permission to use those products, as they are physical products. In games it's just a digital representation of the product so devs have ignored getting permission, whether or not that's ok.. Well I'm not a lawyer so I have nfi.

        Ace Combat games feature all sorts of aircraft and modern military vehicles. Aside from the Russian aircraft, Bandai pays the licensing fees for all the aircraft and other vehicles. IIRC EA paid for the licensing of aircraft too, so vidya companies paying licensing fees for using real vehicles isn't out of the ordinary, nor does it have as negative an impact as some would make it out to be.

    Defendants Activision Blizzard, Inc., ... have made billions of dollars by using AM General’s iconic HUMVEE® military vehicle and its distinctive trade dress in eight Call of Duty video games...Yeah, no they didn't. Fuck off.

    An argument this stupid has no logical conclusion.
    * Can a car manufacturer sue anyone that shows their car in a movie?
    * Can an author sue if a shot of someone's lounge room shows their book on a bookcase?
    * Can a farmer marry his horse? No, wait... Sorry, wrong outrage...

      Actually, depending on how the car and book are used, it might actually be a legal problem, especially if you're going outside the company's usage guidelines. (Car manufacturers like BMW have guidelines about how you can portray their cars like Nintendo has rules about how you can use their characters) Incidental usage is more or less ok, but can still be subject to scrutiny.

      I can't answer the second question (though I'd assume it's the same) but for this one...
      Can a car manufacturer sue anyone that shows their car in a movie?
      If it's just background with no badge being shown or whatever, probably not but generally this would be yes. Film/TV must get permission to include specific cars.

      Their argument is the HUMVEE SOLD Activisions video games and not the actual game itself (or marketing). Yeah its pretty fricken stupid argument, but maybe a reasonable license fee can be bargained for here.

      However what if I'm a VERY small developer? would kinda FUCK me over if HUMVEE emailed me and told me I needed to pay them $500 million dollars to represent their vehicles in a game that might only yield less then that in sales. (or maybe they want %30 cut on each sale... kinda crazy still)

      Whatever licensing fee they have in mind needs to drastically scale depending on who pays it.
      But it will mean companies like Activision will end up being chipped away by thousands of arms/vehicle companies asking for their peice of the pie! you can see how that would ruin video game industry easily (yes I hate Activision also).

    I'm no lawyer but I'm pretty sure First Amendment Rights are only valid if the one censoring you is a government entity. Privately owned corporations can ask you to stop doing whatever it is you're doing without infringing on constitutional rights. Secondly, I'm also pretty sure that Trademark law has nothing to do with censorship, and neither does copyright infringement both of which are the relevant factors in this case.

    We've seen a lot of cases like this and varying outcomes for either side. The first amendment cry is dumb but the trademark infringement is potentially valid.

      They're only citing the first amendment to get the COD dude bros all fired up.

      Yes. Americans treat the 1st Amendmant as some get out of jail free card that allows them to say anything they want. Yet not many actually know what the first amendment says

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

      AFAIK, Humvee is not a government entity, They only have a contract to produce something for them.

        It's interesting (and interpreting it no doubt provides employment to numerous people), but quoting only the relevent parts, it says:

        Congress shall make no law abridging the freedom of speech

        Now, what constitutes speed is another can of worms, but, I read that statement as "there can't be a law that prevents one company from preventing another company from free speech".

        I'm glad I'm not a lawyer/judge in cases like these.

        P.S: Also, pretty sure ActiBlizz would be among the first to sue for any other game depicting any of their IP, and would lol at any game attempting the "free speech" defense against it.

          "what constitutes speed" should be "what constitutes free speech". Not sure what happened there. =D

    next.....
    gun manufacturers will be claiming copyright every time a gun is depicted in a game...

    Last edited 04/06/19 3:16 pm

    The next time Activision makes a DMCA takedown, copy and paste their response above!

    I just love how a company like Activision is making claims that they probably hear everday from every youtuber, critic and fanboi they squash for misusing their content.

    "I can't wait for that new CoD game... That Humvee in the trailer just sold me."

    Said nobody ever.

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