Preemptive Strike: EA Using The Freedom Of Expression To Block Potential Trademark Infringement Suit

Video Game Law Blog

January 12, 2012

Kotaku is reporting that Electronic Arts has filed a lawsuit asking the US federal court to hold that it has a constitutional right to depict helicopters based on real-life models in its video games.

EA’s Battlefield 3, a multiplayer first person shooter game that allows players to step into the shoes of various modern military characters, includes depictions of real-life helicopter models manufactured by Bell Helicopter, a subsidiary of Textron Inc. After talks between EA and Textron about licensing the helicopters broke down, EA brought a lawsuit to preempt a trademark infringement claim that Textron might have for the use of its helicopters in Battlefield 3.

EA argues that in the games, there are countless elements that combine visual, audio, plot and programming, of which the helicopters are a minute detail. The work, as a whole, is a combination of each of these elements and not of the elements individually.

What is interesting about this case is that it is one in a string of cases that have invoked the First Amendment to protect the content of video games. A federal court in New Jersey recently ruled that the unlicensed use of a college football player was permissible under the First Amendment (read the decision here and previous coverage here), as was the depiction of a professional player in EA’s Madden NFL series (previously covered here). The Supreme Court of the US also had the opportunity to address the First Amendment in June of 2011 when it ruled that restrictions on selling violent games to minors violate the first amendment (previously covered here and here). The case established that video games have the same protection as any other expressive work, such as books, paintings or movies. 

What makes this case noteworthy is the potential implication for trademark infringement suits that result from a trademarked product's use in a video game. The mere use or resemblance of a trademarked, or otherwise copyright, element is subject to a rigorous analysis under the First Amendment. There is no automatic protection for these elements, especially where those elements are peripheral, or merely a detail compared to the work as a whole. In this case, EA alleges that the use of the helicopters is protected by the First Amendment because the helicopters are not an essential element or the main focus of the game. The same may not true for elements that are, like EA’s Need for Speed, where the cars featured are the main focus of the game (and EA has licensed the vehicles to appear in that game). 

It will be interesting to see how the California federal court will treat EA’s right to creative expression, using trademarked helicopters, and what that will mean for future game developers who would otherwise have to negotiate licensing rights to use trademarked products in their games.