Use of Brands In Video Games Is Free Speech — EA Lawsuit

In a new lawsuit, Electronic Arts (NSDQ: ERTS) says free speech rights permit it to use brand name helicopters in the hit game Battlefield 3. The case is part of a trend in which video game makers are pushing the bounds of trademark law to make their games more realistic.
In its latest claim, EA is asking a California court to declare that its use of Bell helicopters is a form of artistic expression protected by the First Amendment. It claims the helicopters help depict realistic combat in Battlefield 3, a game set in 2014 in which players can command US soldiers in Paris, New York and Tehran to stop an impending nuclear attack.
EA filed the lawsuit after aviation company Textron Inc warned that it would take legal action over trademarks for the AH-1Z, UH-1Y and V-22 Bell helicopters.
The case follows a similar suit last year in which an Indiana company sued EA for using the word “Derringer” to describe Tommy Guns in its Godfather video game franchise. A court sided with EA, and ruled that artistic expression trumped the company’s trademark rights.
And in 2008, California’s influential 9th Circuit Court of Appeals shot down an attempt by a Los Angeles strip club to force Rock Star Games to shut down the virtual Pig Pen club in Grand Theft Auto: San Andreas. As noted by one video game lawyer, the court took a humorous approach in finding players wouldn’t mistake the two clubs:

The San Andreas Game is not complementary to the Play Pen; video games and strip clubs do not go together like a horse and carriage or, perish the thought, love and marriage. Nothing indicates that the buying public would reasonably have believed that ESS produced the video game or, for that matter, that Rockstar operated a strip club.

EA hopes the same reasoning will apply in the new helicopter case. Bell did not immediately return a request for comment.
The video game cases show how rights of creative expression have recently been trumping intellectual property rights which, in other industries, seem to be constantly expanding.
The video game industry is also embroiled in another series of lawsuits over the use of player images in sports games. Courts have recently split over when the industry, which pays handsome licensing fees to the NCAA, must also compensate individual players.
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