...but is nonetheless of extreme importance to all developers, free and commercial.EA vs. Textron...http://games.yahoo.com/blogs/plugged-in/ea-sued-helicopter-imagery-battlefield-3-215407944.html

Electronic Arts has found itself in the midst of a legal battle with Bell Helicopter parent Textron over the game maker's use of images of real world helicopters in the gameEA 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 First Amendment defence is interesting. If it succeded would we all be able to use, for example, third party developers' liveries?

I'd like to compare video games to other forms of media, like t.v. or movies. Would Textron complain if a Bell helicopter was used in a movie? Would they expect licensing fees? What about all the other manufacturers of products in movies - the cars in the background, the clothes people wear, the furniture they sit on. Maybe some of that stuff is not as recognizable, and I understand that there is a lot of product placement in movies nowadays, but I'm sure that not every prop is licensed for use.I'm not saying that Textron has no ground to stand on here. I'm just saying that there has to be a line, and Textron and EA seem set to find out where it lies. I believe EA does currently license names and logos for its sports games (except NCAA players, of course), so it might be hard for them to explain why they do it for one game and not another.

I believe a couple years ago Cessna went after FS developers who were making "Cessna" aircraft... not sure whatever happened with that.

No not my beloved Battlefield 3!

I believe a couple years ago Cessna went after FS developers who were making "Cessna" aircraft... not sure whatever happened with that.

Since we aren't a large company like Electronics Arts, we met Textron's demanded license terms. It was either that or loose most of our product lineup.

The First Amendment defence is interesting. If it succeded would we all be able to use, for example, third party developers' liveries?

That's why this is such a mixed-bag for everyone. I suspect not though, since that would be going from like-media to like-media, unlike this case which involves a computer rendering of a real product.The interesting part is that EA pre-empted Textron by filing a counter-suit, which does give them a bit of an advantage.

The First Amendment defence is interesting. If it succeeded would we all be able to use, for example, third party developers' liveries?

This action concerns the rights of a trademark/trade dress owner. Third party developers have no right to the trademark, and use of the developers expressive work would be subject to copyright only. It could be that EA initiated the suit, because they could choose venue -- in fact, they assert a right to use of the trademark/ trade dress under the "nominative fair use doctrine" which has been set forth by the US Ninth Circuit (western US states). Note that the Ninth Circuit includes interests such as Hollywood, who would be interested in this type of case and no doubt the Ninth Circuit is mindful of this, in a way other circuits may not. In the US the traditional test on infringement under federal (Lanham Act) law is known as the "likelihood of confusion" test, but this is normally applied to commercial speech, rather than expressive or artistic speech. Note that unlike Copyright, which is strictly a power granted to US Congress (or treaty) to provide monopoly in sale, trademark is covered both under federal law, and in the common law which has led to various state laws as well.A granting of relief to EA under one or the other theories would be good news for us.scott s..

Edited January 12, 201214 yr by scott967