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EA Takes on the Military-Industrial Complex

Electronic Arts (EA) is well known for the lifelike characters and realistic imagery found in its video games. While their state-of-the-art graphics has made them successful, EA is now entering a real-life court battle. Their opponent: Bell Helicopter’s parent corporation Textron. The case involves EA’s use of images of real world helicopters in the game Battlefield 3.

Textron sent EA a cease and desist letter, claiming that EA had used Bell Helicopter’s images without permission and had failed to pay licensing fees. They demanded the helicopter models be removed from the game. EA responded by filing an anticipatory lawsuit (a lawsuit you file when you expect to be sued, and want to be on the offensive), asking for declaratory relief from the court on the grounds that EA has the right to use the images.

EA asserted several reasons why they should be allowed to use the image in the game. First, EA claimed that using the graphic of the helicopters is a form of free and expressive speech under the First Amendment. The Supreme Court recently held, in Brown v. Entertainment Merchants Association (link opens to PDF), that video games are entitled to the same free speech protections under the First Amendment as books, movies, and music. EA stated in their complaint that the video game’s images of the helicopters “have artistic relevance to EA’s expressive work and Battlefield 3’s use of them does not mislead customers as to the source or content of the work.”

EA recently won a similar First Amendment case against a college football player for the use of his image in EA’s NCAA Football game. Ryan Hart, a quarterback for Rutgers University, sued EA for allegedly violating Hart’s right of publicity by using Hart’s likeness in several editions of the game. The game had a virtual Rutgers player from his home state, bearing Hart’s jersey number, incorporating his physical attributes, preferences, and skills. The judge held that EA had the clear First Amendment right to use the images. The judge also held that EA’s use of Hart’s image did not suggest to consumers that Hart was endorsing the game.  This was in contrast to a different right of publicity lawsuit – Keller v. EAin which a judge found that the NCAA game had not been “sufficiently transformative” of the players, and, on that grounds, denied EA’s motion to dismiss the case.

While a claim of right of publicity is different from trademark claims, the same rationale can apply in some cases. It is interesting to note that EA filed for declaratory relief in the Northern District of California, the same court that ruled against EA in Keller. Does this suggest that EA is taking a more aggressive stance?

EA also claimed they can use the image of the helicopters under the “Nominative Fair Use” defense. A business may use the trademark of another as a reference to describe the other product. They may only do so, however, if the user does nothing to suggest that use of the trademark was sponsored or endorsed by the trademark holder, and if they meet several other criteria. The concept of Nominative Fair Use is what allows Coke and Pepsi to compare their products in commercials. EA said in their complaint that “nothing in or related to the game contains any indication that Bell and/or Textron endorses the game or has had a role in producing it.” EA also placed a disclaimer on the video game stating that the use of images within the video game did not indicate that manufacturers endorsed the game.

Images of these helicopters are often seen in a form that at least approaches the public domain. For example, the U.S. military has issued many images of the vehicles in hopes that the images will be used in a positive affiliation with the military and garner support.

On the other hand, EA was sued by Textron before based on similar claims. In 2006, Textron sued EA over EA’s use of their helicopters in the games Battlefield Vietnam, Battlefield Vietnam Redux, and Battlefied 2. The two parties ended up settling, however, before any legal resolution had been reached.

Ultimately, I’m not sure that the Nominative Fair Use argument will win here. EA created these games for profit, and there is no news value to the games – they are pure entertainment products. EA presumably could have created images of similar-looking helicopters without greatly damaging the game’s commercial appeal. If EA was concerned that hardcore gamers would avoid a game that doesn’t use exact replicas of real military equipment, they could have negotiated for a license. Given that this had been an issue in the past, it’s surprising that EA would walk into the same problem a second time.

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