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EA claims First Amendment protection for Battlefield 3

Publisher issues complaint against Bell Helicopters after discussions break down

Electronic Arts has issued an action claiming First Amendment protection for its use of real-world military helicopters in Battlefield 3.

According to legal documents obtained by Kotaku, EA was contacted on December 21, 2011 by lawyers representing Textron, a US conglomerate that owns the military hardware company Bell Helicopter.

Textron demanded that three models depicting Bell aircraft be removed from Battlefield 3. However, after failing to reach an understanding privately, EA submitted an action to the federal court of Northern California last Friday.

The document states that, "the parties have been unable to resolve their dispute. EA therefore has a reasonable and strong apprehension that it will soon face a trademark and/or trade dress action from Textron."

EA believes that its use of the AH-1Z Viper, UH-1Y and V-22 Osprey helicopters is, "protected by the First Amendment and the doctrine of nominative fair use," and notes 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."

EA's claim is strengthened by June 2011's landmark ruling that gave games the same First Amendment rights as film and literature. The US Supreme Court voted 7-2 against a motion to reinstate a law concerning the sale of violent video games to minors, and introduced new labelling laws and punitive fines for retailers.

Since then, a lawsuit between EA and Rutgers University over the use of quarterback Ryan Hart's likeness was dismissed after a judge ruled that EA's First Amendment rights outweighed Hart's rights to control his own image.

"Millions of dollars are being made, and he's not getting his part of that pot," Hart's lawyer, Tim McIlwain, said at the time. "How is this allowed to happen?"

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Latest comments (14)

Ken Addeh4 years ago
The game was being created over how long?...endless talks, endless information being pumped out by DICE about what was being included in the game, a HUGE marketing campaign, a beta and a few soldiers being used to help get references correct with weapons, gear, clothing, machinery, (and probably much more than I've mentioned)....then two months after the game release is when EA are contacted?

So, basically, this is all about money. Again. (Sigh)
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Alex Chapman Partner - Head of Interactive Media, Sheridans Solicitors4 years ago
Interesting - in the EU we don't have the benefit of the First Amendment in any case and so it wouldn't affect a calim against EA here.

That said as a matter of law there is also question of whether this would ever actually be trade mark infringement or passing off / unfair competition.

The European Courts have held that a trade mark isn't infringed where its "use does not affect the inherent function of the mark". So in a case involving toy replica Opel cars the use of the Opel logo wasn't an infringment because it was used to identify the fact that the car was a replica of an Opel car. So it follows that the use of the name of a weapon or aircraft may not be an infringement of a registerred trade mark (in the EU) where it is used to identify a simulation of a real world item.

Of course that won't stop the owner of the marks suing and each case will turn on its facts.
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Tom Keresztes Programmer 4 years ago
This is not the first time this happent, there was a similar controversial issue about the F22 and (if i recall correctly) Interactive Magic's F22 sim. And also, Due to intellectual property issues, several important US planes — such as the TBF Avenger — could not be included in the Il-2 simulation as flyables.
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Show all comments (14)
Liam Stockley Studying Computer Science, Nottingham Trent University4 years ago
So ridiculous.
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Neil Alphonso Lead Designer, Splash Damage Ltd4 years ago
Don't worry, that's not an iceberg
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Tim Wright Managing Director, Tantrumedia Limited4 years ago
We photographed hundreds of properties when we developed Isle of Man TT Racing for the PS2. Imagine if all those property owners wanted royalties because we featured their houses, gardens, pets... there has to be a fair usage policy.

If however, EA's marketing stated, "BF3 - Featuring the stunning AH-1Z Viper!" then there could be cause for concern, but AFAIK no facsimile of an item within the game is shown and special preference over another.
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Tim Wright Managing Director, Tantrumedia Limited4 years ago
( "any special preference" - I did try to edit my comment but Gi server throwing a server 500 error! )
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Some guys wants to face the first amendment. Oh great! Wheres the popcorn?
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Claude Esmein Translator 4 years ago
I may be wrong and things may have changed over the time, but as far as I remember, "UH-1Y" stands for "Utility Helicopter, model 1, variant Y" and is issued by the U.S. Armed Forces as a military (therefore government-like) nomenclature. Had the game publisher used the helicopter company own nomenclature (in the present case, probably a 3 digit number as used in the past), there might have been a potential infringement, but I have some trouble to see any basis in the case of the use of a military nomenclature. Same, probably, as for "Air Force One" or "Marine Corps One": the name of this plane and helo (respectively) have nothing to do with the company that built them. Anyway, hundreds of "paper" wargames have used such names over the past decades (publishers such as Avalon Hill, SPI, etc.).
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James Berg Games User Researcher, EA Canada4 years ago
Fair warning, don't make the mistake I did and actually try reading the Kotaku comments. Painful.

It's bewildering that folks expect gaming companies (or anyone else) to pay royalties for the rights of real-world likenesses that aren't central to a game/story/show's presentation. There's just no mental connection being made that doing so would be impossible for large-scale projects, and vastly cost-prohibitive for everyone else. Imagine movies if production companies had to pay fees any time they wanted to have a car in a shot.
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Andrew Coleman Indie game developer 4 years ago
While I agree with EA's side of this debate, I find it pretty ironic that EA is going with a fair-use defense. What's good for the goose isn't necessarily good for the gander, eh, EA?
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Bruno Brøsted Incident Manager 4 years ago
I wonder if EA will eventually regret this. For instance EA holds an exclusive deal with Porsche and if this holds up it seems likely we will see Porsche cars in non-EA racing games.
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Liam Farrell4 years ago
Bell helecopters should just wait for SOPA to pass then it's cash-in time on all the military shooters!
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@Alex this does raise a question with what I thought I understood. Would it therefore be permissable to use, say, the same range of real marque automobiles as say Gran Turismo; so long as none were given special focus nor used for any special promotional or endorsement purpose?
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