Posted: February 9th, 2012
By Chris Hewitt *
Like all males of my generation, I remember countless afternoons spent with friends huddled around a television and gaming console with a controller in hand, playing the newest rendition of Call of Duty, Madden, or Medal of Honor. We eagerly awaited the arrival of the newest version each year. We had our favorites, the games that we preferred over the competitor’s version. It is this favoritism that earns games like Call of Duty: Modern Warfare 3 the title of most games sold in 2011, while other competitors’ games receive a lower ranking. This is a testament to the competitiveness of the video game market, showing the need for companies to find some way to make their product different from the rest. This can mean improved graphics, better game play, or a wider range of multiplayer capabilities. For some, authenticity of weapons or vehicles can provide the necessary distinguishing quality.
Electronic Arts has attempted to provide such a distinguishing characteristic in Battlefield 3, a first person shooter released last fall. Though the underlying military conflict in the game is entirely fictitious, some of the aircraft have a more realistic element. Electronic Arts included a few of Bell Helicopter’s aircraft in Battlefield 3, including the Bell UH-1Y Venom, the V-22 Osprey, and the Bell AH-1Z Viper. The inclusion was meant to “help depict realistic combat.” Electronic Arts did so without the permission of Bell Helicopter and Textron, Bell’s parent company, claims that the use of the helicopters in the game is an unlicensed use.
Textron reportedly sent Electronic Arts a cease and desist letter requesting the helicopters, which contain trademarks, be removed from the game. Discussions between the companies ultimately failed and resulted in Electronic Arts filing a lawsuit in the Northern District of California asking the court to declare that the use of the helicopters is within the company’s First Amendment rights. In addition, Electronic Arts claims that the use is allowed under the doctrine of nominative fair use and relies on a disclaimer contained on the packaging of the game that states that the use of weapons and vehicles are not an official endorsement of the manufacturers.
Electronic Arts’ argument mainly stems from the United State Supreme Court’s decision in Brown v. Entertainment Merchants Association. In overturning California’s law regulating the sale of violent video games, the Court held that video games were entitled to First Amendment protections. Scalia justified this with the reasoning that “like the protected books, plays, and movies that preceded them, video games communicate ideas…through…literary devices…and features distinctive to the medium.”
This case specifically falls in with a line of cases in which video game companies are attempting to extend the bounds of trademark law in an effort to make games more realistic. The case is similar to a suit last year brought against Electronic Arts by an Indiana company for the use of the word “Derringer” to refer to Tommy Guns in its Godfather franchise. The court sided with Electronic Arts in that trademark infringement and right of publicity suit and granted its motion for summary judgment. In so holding, the court held that there was no evidence consumers would be confused as to the source or content of the work and that the First Amendment defense applied.
These recent decisions have given the right of creative expression an upper hand over intellectual property rights. This seems odd because in other industries intellectual property rights continue to expand. So will the decision in Electronic Art’s suit continue this trend? Or will courts reverse their position and afford greater weight to intellectual property rights within the video game industry? Exactly how far does the First Amendment protection of video games extend? Unfortunately, only further litigation and judicial resolution will answer these questions. For now, companies will continue to test their limits and defend their position in court.
* Chris Hewitt is a second-year law student at Wake Forest University School of Law and a member of the Journal of Business and Intellectual Property Law. He holds a Bachelor of Business Administration in Trust and Wealth Management from Campbell University. Upon graduation in 2013, Mr. Hewitt plans to practice business and estate planning law.