EA claims First Amendment protections against expected helicopter lawsuit

by Alexander Sliwinski on Jan 9th 2012 9:16PM

Electronic Arts is seeking First Amendment protections in an upcoming legal dispute with the maker of military helicopters featured in Battlefield 3. Kotaku reports that Textron, the parent company of Bell Helicopters, asked EA on December 21 to cease the depictions of three of its aircraft found in Battlefield 3. Last Friday, EA did a pre-emptive tactical suit against Textron, saying the helicopters are "protected by the First Amendment and the doctrine of nominative fair use."

EA states that the Bell helicopters aren't highlighted or given any great distinction in the game. The publisher also claims the aircraft 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."

The publisher won a similar suit last year against Ex-Rutgers University quarterback Ryan Hart, who believed his likeness was used in NCAA Football without consent. The judge felt EA's First Amendment rights to free expression outweighed Hart's right to protect his likeness, despite the character in the game having "Hart's physical attributes, sports statistics, and biographical information in mind."

Speaking of First Amendment protections, Electronic Arts claims it has no individual position on SOPA, but wants the law to bail it out here ... mmm, chewy irony.

Source: Kotaku

Tags: battlefield-3, bell-helicopters, Business, EA, Electronic-Arts, law, lawsuit, microsoft, pc, playstation, ps3, textron, xbox

Reader Comments (52)

Why do I feel that the courts have much more important things to deal with than this?

@Gibbeynator
lol they do

@Gibbeynator Because they do. If EA would have been like hey were using your helicopters from the start they wouldn't be wasting anyone's time or taxpayers money.

@Gibbeynator Everything must be dealt with, especially if it's entertaining.

@Gibbeynator If you were suing EA for using something that you felt you owned the rights to, I'm sure you'd think it was a prescient and important case.

Copyright and trademark courts exist to deal with these very things.

That being said, I think that EA has the right to use their model in the game. Imagine if all of the car manufacturers sued Take2 because GTA uses a likeness of their cars, though not the actual cars, in their games? Cars, airplanes, helicopters, and the like, all have a fairly uniform look and operation.

@KodyxDestroyer Learn to research the legal system before spouting off your BS. In Civil Courts, the parties pay, not "taxpayers". Under the American Rule, each side pays their own legal fees, and only under specific circumstances does the losing side have to pay the others' attorney fees.

You want to know what's a waste of taxpayer's money? Prosecuting people for failing to transfer their automobile titles within 45 days. (In my state, it is considered a Gross Misdemeanor = up to a 364 jail term if convicted. That's the max a person could get for such a charge. Not many, if any, get that, but the point is that such law is on the books and costs taxpayer monies to deal with...)

@KodyxDestroyer

BULLSHIT. Bell shouldn't care, and they will loose bigtime.
The helicopters are military use.
1) Bell doesn't make ANY money from their image, and thus cannot show any loss or damages.
2) EA isn't making money specifically off the likeness of the craft, and thus is not creating damages.
3) Military craft are bought developed for and purchased by the government, thus argument can be made that their likeness is part of the public domain.
4) As famous military craft, they are in the pubic eye and thus "fair use" applies.

In my opinion if EA has to license the use of cars in Need for Speed why should this be any different. I think its mainly just cause they don't want to take them out nor pay any compensation to the actual company who made them. EA you are quickly taking back the crown of douchebaggery from Activision.

@KodyxDestroyer

Cars are slightly more familiar to the consumer than helicopters...

@KodyxDestroyer QFT

@gordogg24p Still its the same concept though. I do get your point though.

@KodyxDestroyer Because the cars are featured in the game. They are a selling point of the overall game. But the helicopters are just superfluous vehicles that are not highlighted and just add to the overall battlefield environment.

EA will win this. Don't you worry.

evilkoala is right here. Here's the particular legal distinction.

Trademarks protect brands and consumer expectations. Trademark infringement occurs when a defendant actually "trades" on the mark by using it to identify the maker, source, or seller of the product, for example by using the word "Fender" on a guitar. Nominative fair use occurs when a defendant uses the mark other than as a trademark, such as by writing an article about guitars and actually using the trademarked word "Fender." You can't talk about Fender guitars without using that word.

In a racing game, a big selling point can be the realism of in-game models of actual cars, so the game actually "trades on" those marks by using them in the game. Nobody is buying this game for the particular helicopters used in game. Easy win for EA.

@KodyxDestroyer Need For Speed choses to use licensed cars because it's a more effective way to market the game. Other prominent racing games, like Burnout in the past, have not used licensed cars because it's not important to them and the developers wanted the freedom to do what they would with the cars. The cars still look like race cars, and I'm sure that there are a few that look almost exactly like popular race cars, or enough to say that there is a likeness.

But, make no mistake, in the NFS series, Forza, GT, and others, the publishers want to license cars because it's an important way to sell the game.

@evilkoala While I understand they are not necessarily put on a pedestal like cars in a racing game, it raises the question: if they aren't important to be realistic looking, why did they make them so? A bland helicopter that looks like multiple helicopters, given the angle, but not a single one (like how most racing games that don't want to pony up the licensing fees/restrictions does their cars) would work just as well as the real deal if looks didn't matter.

I'd be curious if Tex can make the case for it. Not just because I have an axe to grind with EA, I feel it's the same as using real cars without a license, no matter their focus. GTA and Saints Row didn't have real cars, but no one can say they had a vital role in that game either.

On top of that, by using their likeness to help make the game more "real" (it used the word simulation, not me), EA was able to sell the look and get a paycheck. Let me rephrase that: It used trademark material without approval and profited it from it. It would seem fair that, given the hole that the trademarks/copyrights have put everyone in, EA should have to pay.

@KodyxDestroyer EA made the models of their helicopters, and this is free advertising… maybe Bell should pay them since they did *nothing* in this case.

@KodyxDestroyer

And if none of the companies wanted to give EA the rights to the helicopters then EA would have to make there own and that would not be a good thing. if they want to pay the money to duke it out then let them. though i think its sort of funny because EA would have spent less money if they would've rented the copy write.

Good to see I wasn't the only one thinking SOPA while reading that.

@gordogg24p
Funny because EA took back their support.
http://www.joystiq.com/2011/12/30/nintendo-ea-and-sony-also-rescind-sopa-support/

@gordogg24p SOPA only deals with foreign websites. We already have laws to deal with trademark and copyright theft in the United States and they are suing under it. It has nothing to do with the first amendment.

"Chewy Irony" would be a great name for a band.

Karma...it's a bitch.

@CaptainProtonX
or a slut or a whore

@CaptainProtonX I don't really see how that applies to the situation. I mean EA won last time, they probably will again, and it's not like they even really did anything bad. Not that karma's real or anything

@CaptainProtonX

If only Karma was real. EA has pretty much ruined the two games I held in high regards they published: DA:O, and BF2. Thanks EA/Bioware/Dice. "Sequels" my A. More like Sellout-quels.

Romney said it best: "Helicopters are people"

@343 Guilty Fart I think because Helicopters are people they should be able to get married and have guns.

@YouAintFatYouAintNotin

Do you really think that two helicopters could raise a healthy child??

Won't someone PLEASE think of the children?!

My question is as a military aircraft manufacturer, what is so bad about having your aircraft depicted in a US Marine based military shooter?

I guess the simple fact that permissions may have not been asked beforehand is the real grounds for hostility. Which makes sense I suppose.

Lol on a side-note could you imagine if EA lost the dispute and was forced into having to cut off use of the aircraft and insert more into the game?

@Godslegion It's all about the money.

@Godslegion Are you kidding? Corporations act like it's a racial slur to have their content in someone's game. Even if it doesn't directly say its theirs, they still want to make a little extra money.

@Godslegion

corporations are money grubbing entities that will do anything for a buck. I'm not saying that as a bad thing they are they always will be.

the fundamental reason why they are so greedy is human nature. if a big group of people decide to do something that is ethically wrong but not illegal they will and people who think that it is a bad thing won't do anything about it until they see that they have support. take slavery for example we had to go to war to change that.

"Speaking of First Amendment protections, Electronic Arts claims it has no individual position on SOPA, but wants the law to bail it out here ... mmm, chewy irony."

Thats corporations for you, "All me, f*ck everybody else."

@OGC
EA is no longer backing SOPA. They haven't been backing it for a week now.
http://judiciary.house.gov/issues/Rogue%20Websites/List%20of%20SOPA%20Supporters.pdf
They're no longer on the official supporters lists.

@The Aquacharger

....*sigh*...EA is part of ESA, ESA supports SOPA, therefore EA supports SOPA, despite their bullsh*t corporate PR moves to try and protect themselves from public backlash.

Thats like Sony saying they dont support it, but the RIAA does, and the RIAA protects the interest of the four major music corporations, so Sony does support through RIAA.

@OGC
But EA made a decision to remove their name from the official support lists. I'm aware they're part of the ESA and are at the ESA's hands. But they used to be on the SOPA's list of support and then they removed their name from the list.

@The Aquacharger

Unless they rescind support for the ESA as well, which they have explicitly not done, they're still backing it. They're just doing so from a cozy public image friendly position.

To me, that's almost worse.

I haven't played BF3 so just to be clear here, the helicopters aren't called out by manufacturer name or specified, but they look just like the real life Bell Helicopters?

If that's the case then there shouldn't be any first amendment protection. EA could have easily made a generic or custom heli for the game. Usually free speech is protected when you are trying to parody the likeness of something else, not just copy it.

@Lerkero

Free speech rights create many limits to trademark rights, not just parody. Did you notice that this post used the words "Battlefield 3"? Did you know those words are trademarked? http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:vn68f5.2.1

That's nominative fair use of trademark at work there, under the "news reporting" prong. The question here is not whether they used the mark, but whether they actually traded on the mark. It's a legal distinction that turns on the intent of the use and whether consumers are confused about the sponsorship (or lack thereof) by Textron.

@vidguy man you are my fkn hero

EA really loves to lock people into to stuff, but not themselves, eh? That whole TOS that claims you can't sue them is kind of ridiculous.

On a side note: I really wish I could play the damn game. Had it since October 25th, and it's unplayable due to connection problems. Done all of the instructed fixes (Port forwarding, SSDP/UPnP, reinstalled BF3, PB, and Origin, etc.) with no luck. I looked on the forums and found that countless others are having the same problem to this date, but DICE doesn't want to address it. Hell, I can't even play the campaign, since it's run through Battlelog.

So they make a contract with Porsche for exclusivity in their racers but then claim that 1st amendment gives them right to portray other IP for which they didn't pursue a license?

Why get a license with Porsche then? Any intelligent lawyer for Bell would point that out.

Just call it a BH-001 Bocra Helicopter.

I hope there is a settlement. For instance EA has to pay $10 every time some who didn't originally own the aircraft but instead bought it used wanted to fly it.

My question is what happens to the Viper, Little Bird, and Venom if EA loses? Will they have to swap the vics to the Apache and Black Hawk?

The author of this post has no clue what he is talking about, for two reasons: (1) SOPA makes EXISTING U.S. law applicable to foreign websites, so it changes NOTHING about anyone in America's rights, and (2) the First Amendment doesn't guarantee unlimited free speech. This case is about whether you can find copyright infringement in the mere depiction of a protected design. There is absolutely no way that SOPA-style legislation would have ANY bearing on this case at all. Unless... the court found EA to be in violation of the Textron IP and EA, who could no longer sell the game as-is, decided not to alter the game and instead sell it online, but in order to avoid U.S. law decided to put the servers in Uzbekistan where U.S. law couldn't touch the servers. In that case SOPA would help Textron by letting them stop EA from using Paypal, Visa, Mastercard, etc to sell the game online, and would stop them from hosting ads on their website. EVERYONE (even internet companies) agree to those provisions of the Bill. The controversial (?) part would be if Textron had the U.S. government seize the domain name of the EA server hosting the illegal game in Uzbekistan. Why is this so hard to understand?

@Eryu: That's a nice little textbook description that does nothing to touch on the actual reasons why the vague wording of the bill is dangerous to free speech on the internet.

@AxelSteelBMX Do you mean in the original SOPA text or the Manager's Amendment which fixed those ambiguities? Or in internet-speak: SOPA 1.0 or 2.0 ?

I think this would make more sense if EA was secretly building these choppers after stealing the designs. Then coming out and marketing they are going into the arms business with their new choppers.

But this is utter stupidity. So what if a game used your choppers? People are too whiney these days...

If the "description" of the helicopter is available to the public and is largely in the public domain, then the company has no grounds against EA. Its exactly like the specs of the guns. You can generally use the descriptions found in public places or on their websites.

| 1 | 2 | Most Recent | Next 50 Comments

Battlefield 3

EA claims First Amendment protections against expected helicopter lawsuit

Reader Comments (52)

Posted: Jan 9th 2012 9:20PM Gibbeynator said

Posted: Jan 9th 2012 9:25PM arucious said

Posted: Jan 9th 2012 9:25PM KodyxDestroyer said

Posted: Jan 9th 2012 9:26PM Miranda Lawson said

Posted: Jan 10th 2012 9:09AM The Albatross said

Posted: Jan 10th 2012 10:31AM Platoesq said

Posted: Jan 13th 2012 12:05PM GErvy said

Posted: Jan 9th 2012 9:24PM KodyxDestroyer said

Posted: Jan 9th 2012 9:26PM gordogg24p said

Posted: Jan 9th 2012 9:27PM PhaseDMA said

Posted: Jan 9th 2012 9:30PM KodyxDestroyer said

Posted: Jan 9th 2012 9:54PM evilkoala said

Posted: Jan 9th 2012 10:15PM vidguy said

Posted: Jan 10th 2012 9:11AM The Albatross said

Posted: Jan 10th 2012 11:37PM GCountach said

Posted: Jan 11th 2012 10:40AM johndrinkwater said

Posted: Jan 11th 2012 5:50PM SKYRIM111111 said

Posted: Jan 9th 2012 9:26PM gordogg24p said

Posted: Jan 9th 2012 10:16PM The Aquacharger said

Posted: Jan 10th 2012 10:17AM Eryu said

Posted: Jan 9th 2012 9:29PM ArtificeDrake formerly known as said

Posted: Jan 9th 2012 9:29PM CaptainProtonX said

Posted: Jan 9th 2012 10:29PM HellFlyer said

Posted: Jan 9th 2012 10:42PM TheDarkWayne said

Posted: Jan 10th 2012 12:24AM ev77 said

Posted: Jan 9th 2012 9:44PM 343 Guilty Fart said

Posted: Jan 9th 2012 9:54PM YouAintFatYouAintNotin said

Posted: Jan 9th 2012 10:16PM ArtificeDrake formerly known as said

Posted: Jan 9th 2012 9:56PM Godslegion said

Posted: Jan 9th 2012 9:59PM hypoh said

Posted: Jan 9th 2012 10:14PM Dionkey said

Posted: Jan 11th 2012 6:03PM SKYRIM111111 said

Posted: Jan 9th 2012 10:01PM OGC said

Posted: Jan 9th 2012 10:19PM The Aquacharger said

Posted: Jan 9th 2012 10:27PM OGC said

Posted: Jan 10th 2012 2:05AM The Aquacharger said

Posted: Jan 10th 2012 6:49AM Colin said

Posted: Jan 9th 2012 10:07PM Lerkero said

Posted: Jan 9th 2012 10:28PM vidguy said

Posted: Jan 10th 2012 12:26PM DarkSonata said

Posted: Jan 9th 2012 10:10PM Dionkey said

Posted: Jan 9th 2012 10:16PM MDizzy said

Posted: Jan 9th 2012 10:27PM Konrad said

Posted: Jan 10th 2012 1:41AM (Unverified) said

Posted: Jan 10th 2012 3:05AM MercShame said

Posted: Jan 10th 2012 10:27AM Eryu said

Posted: Jan 10th 2012 11:09AM AxelSteelBMX said

Posted: Jan 10th 2012 11:45AM Eryu said

Posted: Jan 10th 2012 10:57AM doublerainbow said

Posted: Jan 10th 2012 11:37AM ReadingRambo said

Battlefield 3 Info

Description

MSRP

Release Date

Genre

Developer

Publisher

Rating

Breaking News

WB conjures up Harry Potter for Kinect this fall

Featured Stories

Stiq Figures, May 14 - 20: He's heating up edition

The Joystiq Indie Pitch: Ballin

Weekly Webcomic Wrapup is a stranger in a strange land

Engadget

TUAW

Massively

WoW