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GlideBy

No need to license liveries

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Posted (edited)

This was just reported.  Back in 2017 AM General sued Activision over the unlicensed use of the Humvee in the Call of Duty games.  Activision countered by saying it was a first amendment right.

The lawsuit is over and the judge is allowing Activision to continue to use it.  But here is where it gets interesting.  "Dismissing the lawsuit, district court judge George Daniels determined that the games passed the "Rogers test," a precedent set by a case that dealt with the depiction of actress Ginger Rogers in the 1986 film Ginger and Fred that protects artists and authors from accusations of trademark infringement unless that trademark is completely irrelevant to the creative work or is somehow being used to mislead its audience."   So the key points are that a game is a creative work, and weather or not it is irrelevant or misleading.

The judge goes on to say "If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal," Judge Daniels wrote. "The inclusions of Humvees in the foreground or background of various scenes...are integral elements of a video game because they communicate ideas through features distinctive to the medium."  Now you might note he is talking about warfare games.  But in context he is saying real militaries use humvees, so they are expected in a warfare game.  So you would expect real airlines in a sim that uses real live traffic.  It is part of the realism.

So as I see it, a sim that is even more realistic than CoD, and has real live traffic, could show the airline of the live traffic.  This sim exceeds the bar set by CoD.  This just happened, so the lawyers could appeal.  And I expect MS lawyers will wait to see, at best, and at worst will be cautious.

Here is a link to an article.  (Note, many sites reported on this)  https://www.thedrive.com/tech/32872/you-have-a-first-amendment-right-to-humvees-in-call-of-duty-games-judge-rules    It is a good read, as he mentions the Polaroid factors, which the Sim would also pass.

Edited by GlideBy
Devs, I looked and didn't see a forum that better fits. So I put it here because MSFS is still in development.
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Just because you can doesn't mean you should, as you mention the inclusion of a vehicle lead to a lawsuit. I don't think a company like Microsoft would like to anger large companies.

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3 hours ago, jelknab said:

Just because you can doesn't mean you should, as you mention the inclusion of a vehicle lead to a lawsuit. I don't think a company like Microsoft would like to anger large companies.

Microsoft (like Activision) is a large company and they could probably get away with putting in liveries because of this. However, due to the complexity of the sim and their work with it, I think it's unlikely we'll see em put the extra work into putting official liveries on the aircraft.

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It does make you wonder. MSFS is simply recreating the world as it appears in real life.

If Delta has a 737-800 on approach to Chicago and the Azure system simply places a nearly identical representation of that aircraft in the the same location, traveling on the proper course at the proper speed, then this rule may apply. In order to accurately reproduce that tiny little slice of airspace, that aircraft needs to be there. I think Delta would lose (in that particular courtroom).  

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In FSX, the ATC doesn't even speak real airlines' names, one had to copy a file (that was included, but not used) over the original one so that ATC would speak them.

Regarding liveries, it was a long time ago, does anyone remember the "Papa Tango" case?
 


Siggy Schwarz

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7 hours ago, MDFlier said:

It does make you wonder. MSFS is simply recreating the world as it appears in real life.

If Delta has a 737-800 on approach to Chicago and the Azure system simply places a nearly identical representation of that aircraft in the the same location, traveling on the proper course at the proper speed, then this rule may apply. In order to accurately reproduce that tiny little slice of airspace, that aircraft needs to be there. I think Delta would lose (in that particular courtroom).  

It is interesting to note that both Bing and Google have satellite images of various airlines.  And if they recreate the airport from those images, they would have to do extra work to pull them out.  I don't see how leaving them in would be an issue.

 

6 hours ago, siggy said:

In FSX, the ATC doesn't even speak real airlines' names, one had to copy a file (that was included, but not used) over the original one so that ATC would speak them.

Regarding liveries, it was a long time ago, does anyone remember the "Papa Tango" case?
 

Yes, I am aware of this.  AA is one of the airlines that was more likely to sue.  But I think as time went on, they just cared about making money from it, or if it created a bad image.  Note this AA release form, and how they are fine as long as money isn't involved.  https://www.flightsim.com/vbfs/content.php?86-American-Airlines-Release-Form  So they don't seem to care, unless they can make money off it.  


My brother has Coronavirus, confirmed by testing. On 3/26 he almost didn't survive the night.  He had extreme trouble breathing and was given a steroid inhaler.  He was very weak, had nausea, and other issues that aren't pleasant.  As of this update he is feeling much better, and seems he will be fine.  Stay safe out there.  (Updated 4/6)

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I wouldn't sweat it. Have faith in our creative developers - freeware and payware alike, that we will get AI liveries at a very quick pace after release.

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Is it done yet? When will it be released? Will it be freeware or payware? How much will it be? Any updates on the progress? Will it work for FSX? What's the minimum requirements? Can I be a beta tester?

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Talking of real liveries etc. It's always amazed me why the onus is always on the game producer to pay for the privilege of including real liveries. They should be charging the airlines for advertising their companies.

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I have read some interesting assumptions here. So why do you think they need to license those Formula one race or other sports games? They portray the real world, don´t they? Wouldn´t a game portraying the formula one racing be expected to have the real teams in there?

The truth is that a lawsuit in the US is always like playing roulette. You never know about the outcome, except that its going to be expensive - especially if there is money to be had because big companies are involved.

If an airline claims that the new simulator sold better because it features their airline´s livery they can probably sue for royalties. Or the simulator sheds a bad light on their airline (because a user posted a video of himself crashing into a building with that livery)... sueing for lost customer confidence, mental anguish to the CEO´s daughter or both 😄.

We have gotten to the point where treading on the legal stage is like stepping through a minefield, a witchhunt. You just need to CLAIM someone infringed on your rights (worshipped the devil) and he will burn at the stake...just to be safe. Think of the patent trolling, or customers sueing because their coffee is hot!

The system is out of control, so far the public doesn´t care, because thy think they don´t have to pay the price...except they do with higher product prices to cover all the legal costs those companies incur.

Jan

 

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It really depends on how popular the game is that is being discussed. GTA 5 was a gigantic hit and you'll never see either a Porsche or a Corvette badge in that game. Or even a Yugo. There are ersatz versions of popular vehicles, but no brand names or logos.

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It's really treading into a minefield. To be honest, I really can't see, why MS would bother with this.... Besides, if they fill the skies with real liveries, it's suddenly also their job to update them as time goes by. Otherwise they'd have their forums filled with angry complaints about wrong liveries in the wrong time/place etc... 

Let the freeware/payware artists deal with this, to be honest.

... besides, I kinda miss Orbit Airlines! 😉

 


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Posted (edited)

Licensing doesn't just apply to Aircraft, there's building logos, vehicle logos, signs (McDonald's, IKEA, AV Gas, etc.), just about anything you can see might be copyrighted.

In CA, lawyer rates are around $500/hr ... to just review a document and provide legal commentary will cost around $1500-$2000 (for more simple documents).  Sending out letters and filing with courts and going to court moves the costs up considerably (unfortunately I have gone thru this process a few times).

I had started a project on an experimental aircraft that was based on a Northrop Grumman, my initial contact with an owner was good, but then came the money talk which killed the project ... I could have continued, but if sued the legal costs would easily put the project in the negative (keeping in mind that sales for smaller less popular aircraft range from about 250-1000 units).

I would love to see this NOT the case, but why copyrights exist for say America Airlines is they might not want some 3D shooter game/sim allowing a user to select a fully logo'd AA 737 as a "weapon" to be crashed into something.  It's not just about money, it's about control and image.

Ironically these companies will gladly pay a fortune to advertise their product on Facebook, MSN, etc. ... BUT they control what's being presented as an Advertisement.

The laws are still leaving room for ambiguity and/or "interpretation" which is why they tend to vary case by case, so I would NOT take any precedence from this and give the green light to licensing Aircraft logos.

Cheers, Rob.

Edited by Rob_Ainscough

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2 hours ago, Janov said:

I have read some interesting assumptions here. So why do you think they need to license those Formula one race or other sports games? They portray the real world, don´t they? Wouldn´t a game portraying the formula one racing be expected to have the real teams in there?

The truth is that a lawsuit in the US is always like playing roulette. You never know about the outcome, except that its going to be expensive - especially if there is money to be had because big companies are involved.

 

1 hour ago, jabloomf1230 said:

It really depends on how popular the game is that is being discussed. GTA 5 was a gigantic hit and you'll never see either a Porsche or a Corvette badge in that game. Or even a Yugo. There are ersatz versions of popular vehicles, but no brand names or logos.

 

Janov, Jabloom, That was before.  This lawsuit just finished and it changes things.  Lawyers talk about precedent, i.e. how were similar cases judged.  And this case changes things, and it just came out a few days ago.  So going forward we should see changes in realistic video games.  (Depends if they contest it.)

Jabloom, in 2017 an Italian furniture company sued Sony because they used their logo in their game.  They lost that case.  Both of these cases happened after GTA 5 came out.  https://www.thedrive.com/sheetmetal/16205/sony-wins-gran-turismo-lawsuit-involving-realistic-track-sponsorship-logos 

 

7 minutes ago, Rob_Ainscough said:

Licensing doesn't just apply to Aircraft, there's building logos, vehicle logos, signs (McDonald's, IKEA, AV Gas, etc.), just about anything you can see might be copyrighted.

In CA, lawyer rates are around $500/hr ... to just review a document and provide legal commentary will cost around $1500-$2000 (for more simple documents).  Sending out letters and filing with courts and going to court moves the costs up considerably (unfortunately I have gone thru this process a few times).

I had started a project on an experimental aircraft that was based on a Northrop Grumman, my initial contact with an owner was good, but then came the money talk which killed the project ... I could have continued, but if sued the legal costs would easily put the project in the negative (keeping in mind that sales for smaller less popular aircraft range from about 250-1000 units).

I would love to see this NOT the case, but why copyrights exists for say America Airlines is they might not want some 3D shooter game/sim allowing a user to select a fully logo'd AA 737 as a "weapon" to be crashed into something.  It's not just about money, it's about control and image.

Ironically these companies will gladly pay a fortune to advertise their product on Facebook, MSN, etc. ... BUT they control what's being presented as an Advertisement.

The laws are still leaving enough room for ambiguity and/or "interpretation" which is why they tend to vary case by case, so I would NOT take any precedence from this and give the green light to licensing Aircraft logos.

Cheers, Rob.

Most major game devs, including MS, have full time lawyers that work for them.

As for your next points, I think Grumman and AA both just want money.  I saw that because AA is fine with you making a livery if there is no money involved.  https://www.flightsim.com/vbfs/content.php?86-American-Airlines-Release-Form

And in this Humvee case, the manufacturer wanted money as well as they didn't care if the Humvee blew up.  And the judge said no, as the game is realistic and you would expect Humvees there.  So Activision can keep using Humvees without paying.

And keep in mind, this case just concluded.  It is setting precedent.  This have just changed, it will take a bit to see the ripples.  Or to see if they contest the ruling.


My brother has Coronavirus, confirmed by testing. On 3/26 he almost didn't survive the night.  He had extreme trouble breathing and was given a steroid inhaler.  He was very weak, had nausea, and other issues that aren't pleasant.  As of this update he is feeling much better, and seems he will be fine.  Stay safe out there.  (Updated 4/6)

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You all might be misjudging the ability of patent and trademark attorneys. It's not the most glamorous legal speciality but it is quite lucrative. One case in Italy means nothing, when the locus (or maybe the word locust in more appropriate) for protecting intellectual property is centered in the US. The details of the Activision case relate more to the look and feel of the Humvee model, not whether Activision used an AM General logo.  It remains to be seen if AMG will appeal the summary judgment ruling. Here's some not so light reading for those bored and stuck in their domicile:

https://www.documentcloud.org/documents/6823541-Humvee.html

My cousin is a patent attorney and happens to be a really nice guy. He's been willing explain to me a lot of details about branding that I never had much of an interest in knowing about. His firm handles some of the biggest corporate accounts in the world.  They have successfully obtained cease and desist orders against the smallest of violators. The whole concept is not based on soaking violators for money. It's more of a Catch 22 theory. If you don't stop one person from profiting from your branding, then everyone else would be a fool to do otherwise. Amateur painters will still be able to make liveries as long as they don't charge anything for doing so. But once somebody tries to sell a specific flightsim aircraft model, it will depend on how lucrative the model is on the open market. PMDG knows this and they have long partnered with Boeing in some fashion, the details of which are beyond my interest in this subject.

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Posted (edited)

The law has changed so China can now bring out a phone and call it iPhone 12 in that case they now how to make them, try using the FIA or the FIFA logo and see how soon they slap you down. British Airways is a registered trade mark as is Microsoft Google Apple and Amazon.

PS you can build kit car of a Ferrari but you cannot use the badge on the front they use one that looks similar but upside down. 

Edited by G-RFRY

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