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
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.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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