Electronic Arts is asking a federal judge to rule that it has a First Amendment right to depict real-life military helicopters in video games such as Battlefield 3 without the permission of the aircraft's maker.
The action, basically a pre-emptive lawsuit against Textron, the parent company of Bell Helicopter, comes after discussions between the two sides broke down, according to a copy of the suit obtained by Kotaku. The suit was filed Friday in federal court for the Northern District of California.
The lawsuit says that on Dec. 21, Textron lawyers demanded that EA cease its depiction of three Bell aircraft in Battlefield 3. "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."
Electronic Arts asserts that its depiction of the three aircraft "are protected by the First Amendment and the doctrine of nominative fair use." EA notes that Battlefield 3's packaging features a disclaimer stating that the appearance of real-world weapons and vehicles does not constitute any official endorsement by their maker. It adds that "the Bell-manufactured helicopters are not highlighted or given greater prominence than any of the other vehicles within the game."
"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," says the suit.
Electronic Arts' pre-emptive action would seem unusual were it not for June's landmark Supreme Court ruling that video games have the same free speech protections as other expressive works such as film, books and music.