Another Legal Dispute for EA

By Michael Weiner

            January 19 – Well-known gaming company Electronic Arts is locked in yet another heated legal battle, this time with aerospace company Textron, according to multiple reports.  The dispute stems from EA’s depiction of 3 helicopters in the first-person shooter game Battlefield 3 that closely resemble helicopters made by Bell Helicopters, of which Textron is the parent company.           

On January 6, EA filed a pre-emptive lawsuit against Textron after Textron had previously demanded that EA cease and desist its depiction of the military choppers on the grounds that the gaming company was using their likenesses without paying any sort of licensing fees.  EA claims that the helicopters are not a central aspect of the game, is seeking a ruling that protects their depictions of the choppers under the grounds that they are protected by the First Amendment right to artistic expression, citing a landmark Supreme Court decision in 2009 that granted the same rights of expression to video games that protect the content of books.

            “There are various elements to this case,” says Susan Arnold, VP of Licensing at EMI Entertainment World, and a copyright lawyer with over 20 years experience dealing with intellectual property.

            “I can imagine why it would be deemed mere artistic expression, because I don’t think Textron’s patents would cover the image and likeness of their machinery,” says Arnold.  “Alternatively, one could argue that it [EA’s use of the helicopters] is product placement, or free advertising for Textron.  However, since Textron is a weapons manufacturer, the game isn’t reaching any market that would affect the commercial value of the helicopters’ proprietary likeness.”

            This case comes on the heels of multiple lawsuits against EA by former college football players regarding the company’s use of their likenesses in the NCAA Football game series.  The NCAA forbids EA from using the names of the players due to its amateur rules, but EA does use physical attributes, player ratings, and biographical information such as the players’ hometowns that very closely resemble the real players.  In each case, the judge ruled in favor of EA, citing EA’s right to artistic expression and stating that the attributes in the game do not make the players recognizable enough to be considered their likenesses.

            This is the second time the two companies have argued over the depiction of Bell’s helicopters, as Textron sued EA over the same issue in 2006.  That case was settled outside of court in 2007.  The current case is open and ongoing.