Hit military shooter Battlefield 3 is a very realistic game. Maybe too realistic.
Battlefield 3 (EA)
EA says its use of the choppers — specifically the AH-1Z Viper, the UH-1Y, and the V-22 Osprey — are protected under the First Amendment and constitute fair use. Textron argues they were used without permission and EA failed to pay licensing fees.
The suit, which EA filed pre-emptively before Textron had a chance, came after negotiations between the two companies broke down last month. Textron had sent a cease and desist order to the company, demanding that the models be removed from the game.
"The parties have been unable to resolve their dispute," EA's complaint says. "EA therefore has a reasonable and strong apprehension that it will soon face a trademark and/or trade dress action from Textron. … The Bell-manufactured helicopters depicted in Battlefield 3 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."
It's an argument that served the company well in the recent suit filed by NCAA players who felt they should be compensated for their image being used in that franchise. The judge in that case agreed that because the company, as all video game publishers do now, enjoyed clear First Amendment protections, it was within its rights to use the images.
A big question looms, however: if EA receives a favorable ruling in this sort of case, what sort of impact could that have on other titles that feature licensed products? The company currently negotiates with sports leagues and car companies featured in other franchises, but if the courts continue to rule that publishers can use branded items under fair use, it could have an impact on licensing deals moving forward — especially if the company puts a disclaimer on the game saying it's not endorsing any brands.
- Arts & Entertainment