The gaming blogsphere is abuzz over Electronic Arts’ filing of what many sites (such as THREsq) have dubbed a “preemptive” lawsuit (see complaint at Paid Content) against Textron, the parent company of Bell, a manufacturer of military and other helicopters, seeking a court declaration of the game maker’s right to depict real-life military helicopters in its Battlefield 3 video game. EA took action, apparently, after Textron asserted that the copter depictions in the video game constituted trade dress infringement and dilution. EA says the depictions “are protected by the First Amendment and the doctrine of nominative fair use.”
In June, the Supreme Court ruled that video games are entitled to the same free speech protections as movies, books, and music. After this landmark decision, EA prevailed in a matter involving the unlicensed use of a college quarterback’s likeness. EA believes the use of the helicopters would also fall within its right to free expression.
Online analysts have noted that EA has licensed many real-world automobiles for inclusion in its Need for Speed video game. What’s the legal difference between the appearance of the vehicles therein and the disputed choppers here? Those cars in Need for Speed are central to the game’s purpose, whereas the copters in Battlefield 3 “are not highlighted or given greater prominence than any of the other vehicles within the game.”
This is not the first lawsuit involving EA and Textron over copter depictions in video games. In 2006, Textron sued EA on trademark claims and asserted that “EA’s retention and use of [its] marks and images are likely to create confusion in the mind of the ordinary consumer as to the source, affiliation, and/or sponsorship of the helicopters depicted.” That lawsuit ended in an undisclosed settlement. EA notes in its latest litigation that includes a disclaimer on the Battlefield 3 packaging stating that real-world depictions of weapons or vehicles is unrelated to sponsorship or endorsement by the manufacturers.