EA Invokes First Amendment Protection for Video Games in Trademark Dispute with Helicopter MakerS

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.

Since the Supreme Court ruled, EA has prevailed in a somewhat similar matter involving the unlicensed use of likenesses. In September, a federal judge ruled that EA's recognizable, if unnamed, depiction of a real college quarterback, without his permission, was within the boundaries of its rights to free expression.

EA does negotiate licenses with athletes, individually or collectively, to appear in other titles; it is prohibited by the NCAA from licensing or compensating currently eligible college athletes, under NCAA amateurism rules. EA has licensed numerous real-world automobiles to appear in its Need for Speed series. The difference here seems to be that the vehicle fleet is central to Need for Speed's purpose, where it is not in Battlefield.

The three helicopters in question are the AH-1Z Viper, an attack helicopter (pictured above); the UH-1Y, a multipurpose/transport helicopter; and the V-22 Osprey, (jointly produced with Boeing) whose distinctive tilt-rotors allow for vertical and short takeoff and landing.

Kotaku has contacted representatives of both Electronic Arts and Textron for comment. Any they make will be updated here.