Electronic Arts claims First Amendment rights to use weapons, aircraft images in video games

The Fort Worth Star-TelegramJanuary 17, 2012 

A leading producer of high-tech and action video and computer games is asking a federal court to rule that it can use images of modern weapons and aircraft, such as Bell Helicopter's V-22 Osprey, without paying licensing fees to their makers.

Electronic Arts, whose portfolio of action games includes Battlefield 3, has filed suit in California against Textron Inc. and its Fort Worth-based Bell Helicopter subsidiary over Electronic Arts' use of images of aircraft including the V-22 and AH-1Z Viper helicopter.

In what amounts to a pre-emptive lawsuit, Electronic Arts said Textron and Bell demanded that it stop using images of the V-22 and the AH-1Z and UH-1Y helicopters in Battlefield 3 after negotiations between the companies broke down.

Textron and Bell say the aircraft, developed and purchased by the Defense Department with taxpayer dollars, are the corporations' private trademark property.

But Electronic Arts says that its video games are protected by the First Amendment as a form of free and expressive speech and that images of the aircraft are widely seen in the public domain and therefore not subject to trademark or copyright protections.

Spokesmen for both Electronic Arts and Bell Helicopter declined to comment because of the litigation.

Electronic Arts will probably prevail, said Steven Mitby, an attorney with the AZA law firm in Houston who specializes in business patent, trademark and copyright law.

Court precedents seem to favor both arguments cited by Electronic Arts, Mitby said. Just last year, the U.S. Supreme Court ruled that video and computer games are protected speech, giving them the same constitutional protections as entertainment and political speech.

Justice Antonin Scalia, perhaps the court's most conservative jurist, wrote the opinion and was joined by Anthony Kennedy and the more liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justice Samuel Alito each wrote concurring opinions.

"It shows you the conservatives and liberals agreed," leaving little legal wiggle room, Mitby said. "I think this rationale applies in the trademark context" of the Textron case as well.

More broadly, Mitby said, it's hard for Textron and Bell to say that using images of military aircraft in games somehow diminishes their distinctiveness.

"The whole point of trademark law is to make sure people aren't confused by the origins of products," Mitby said. Brand names like Coca-Cola and Coke are trademarked so rivals can't use them, but it doesn't stop generic colas from being marketed in red and white cans, he said.

"The video game maker is saying there's no danger of confusion. I think that's a pretty persuasive argument," Mitby said.

Another factor is Electronic Arts' location. Mitby said the U.S. District Court for the Northern District of California "is hostile to intellectual property claims" because of its proximity to the tech industry, where one person's idea or breakthrough is quickly seized and expanded upon by others.

The Defense Department, which in most cases pays for the research, development and production of weapons systems, doesn't try to assert trademarks and copyrights to collect licensing fees.

Rather, the government cooperates with and encourages film, television and other artistic uses of military equipment on the grounds that it's good public relations and may encourage enlistments.

"It's never been a problem for us. We've worked with Electronic Arts," said Philip Strub, a Pentagon spokesman who works with the entertainment industry.

To read more, visit www.star-telegram.com.

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