EA Lawsuit Doesn't Mean Madden's Exclusive is a License to be Killed

Of all ironies, it's Electronic Arts now asking a judge to rule that some video game depictions of real-life names and symbols and products don't need a license.

The video games publisher is suing the maker of a military helicopter, plainly hoping to establish a precedent that expands creative freedom for all video game developers. But if EA's notorious for anything involving licenses, it's the ones it holds that prevent others from building similar games.

So is EA going to kill its own golden goose, which makes Madden the sole NFL football game, and Need for Speed the only place where you'll find Porsche? That seems doubtful, even if they win out all the way to the Supreme Court.

To revisit, Electronic Arts on Jan. 6 filed a complaint in federal court more or less asking a federal judge to get Textron, the parent company of helicopter maker Bell, off its back for good. Battlefield 3 includes the "trade dress"—basically the visual likeness—of three aircraft made by Bell. Textron lawyers asked EA to shut up or pay up, basically, back in December, and the two sides couldn't resolve their differences, My understanding is that this isn't the first time Textron and EA have butted heads over the same issue.

Video games, ruled artistic works under the Constitution, are exploring what their rights now mean.

The difference is now, EA's dealing with not just a favorable ruling in federal district court, it and all other game makers have the blessing of the U.S. Supreme Court, which ruled in June that video games are works of free expression protected by the First Amendment of the Constitution. Under this principle, EA thinks its use of Bell helicopters in Battlefield 3 is, more or less, equivalent to a filmmaker's use of Bell helicopters in a military drama, one delivering reasonable narrative realism as permitted by artistic license, as opposed to a contractual one.

Naturally, my ears perked up to this. Hardcore sports video gamers have made a parlor game out of speculating an end, legal or otherwise, to the exclusive license the NFL awarded Electronic Arts in 2004, which cements Madden NFL as the only simulation quality football video game available on a console. For the holder of the richest license in gaming (it's believed, among NFL deals, to be second only to the league's TV contract), to bring up any challenge to the validity and necessity of licensing content in a video game, well, trust me, lots of industry watchers noticed.

I have to imagine this action brought a pre-emptive, reassuring call from someone senior at EA Sports to the label's licensing partners, in sort of a "look, we're not trying to unwind our deals," way, if not to state they viewed their rights in these matters in a completely different (and more traditional) way. I asked EA Sports if it had made any such assurances, or if any of its partners had expressed concerns or disapproval of its stance in the Textron matter. I also wanted to know what likenesses or symbols EA Sports considered fair use, and what situations it figured still called for a traditional licensing agreement.

As pending litigation is always a big brake on corporate candor, all I got was a statement that bucked up the label's relationships with its licensors. "We have excellent, long-standing relationships with many sports leagues and players associations," EA Sports said. "We don't expect that those relationships will be affected."

Even Tecmo Bowl didn't risk the NFL's wrath when it published an unlicensed game in 1989.

Really, and especially in the near term, I don't either, even with a totally favorable outcome for Electronic Arts. I don't see how what EA's asking for could cover a use of actual corporate symbols—the NFL shield, the Yankees' interlocking NY, etc. Even Tecmo Bowl didn't go there in the wild-west days, before leagues caught on to the value and necessity of video game licensing. But then, I'm not a lawyer and arguing copyright and trademark with video gamers sinks you into a tarpit of belligerence.

While Tecmo had a deal with the NFL players' union and with it brought notoriety to guys like Cap Boso and Hanford Dixon, it didn't have league permission to use team names or symbols. So the game used the real-world locales and colors of 12 franchises, but stopped there. When the series re-released in 2010 as Tecmo Bowl Throwback (actually a variant of the fully-licensed Tecmo Super Bowl) it used real city names but completely different team colors, mindful of the NFL's courtroom wrath.

EA, however, has prevailed in a couple of cases that are somewhat analogous to what Tecmo did, except in the use of players' likenesses, without permission. Most recently, a judge ruled that former Rutgers quarterback Ryan Hart's rights to control his likeness were subordinate to EA Sports' First Amendment rights of artistic expression. Hart did not appear by name in NCAA Football (no athlete does, at least not unless a user modifies the roster), but he was plainly identifiable by every other trait, from position, to uniform numeral and his rated performance. The judge in this case said EA's depiction was consistent with an artistic expression of real world events.

EA's prevailed against big-name professional athletes on the same question, too, including hall-of-fame running back Jim Brown, who sued back in 2008 over his appearance—again, not by name—on a roster of all-time greats in an older version of Madden NFL. The decision in that case held that video games are "expressive works" protected by the First Amendment, a ruling that both set in motion EA's current legal strategy and also has echoes in the Supreme Court decision that affirmed the same concept.

That doesn't mean it's open season for anyone to make a sports video game without league permission. My guess is if Tecmo were to do today what it did in 1989, it could expect a lawsuit from the NFL, if not on legal principle then at least to defend the value of the league's exclusive license. Anyone doing this kind of thing also risks a court order prohibiting even the game's development as the matter is tried.

Further, to build a game without a license would be an act of war that ended not only any hope of future cooperation with the NFL and the NFLPA, but many other sports leagues and unions would likely refuse, too. If not out of solidarity or legal principle, why do business with someone who'd otherwise turn around and use your likenesses, maybe with a few fig-leaf alterations, for free?

The claim EA makes against a helicopter manufacturer has similarities to one it won against a hall-of-fame running back.

I really can't imagine any serious video game publisher taking this kind of a risk, which includes the loss of development costs for said unlicensed game, and potential business in the future. Not even NaturalMotion, which already has the technology (from its Backbreaker console game) and just put out a licensed NFL mobile game with it. It would take a brazenly rogue outfit laying down the equivalent of a sacrifice bunt.

Regardless of this ruling, EA Sports will continue paying for an NFL license, and an NBA, NHL, FIFA license, and all the others, because they have a model that can make money even with that kind of outlay, and it guarantees the authenticity advertised by "it's in the game," video gaming's most enduring and famous slogan in use today.

But that's not to say that these licenses couldn't become less expensive if another developer actually builds a game with no league permission. It wouldn't have to be a full console disc, either, it could just simply be an independent game that, if the NFL doesn't or can't stop it, diminishes the premium EA Sports pays for exclusivity.

Where it really could hit home is in titles where a league's license is less important, and there's no group license for the roster. These are titles like Fight Night and Tiger Woods PGA Tour. No one's suggesting this action could set a precedent that puts Tiger in a game for free, but for historical figures in golf or boxing, particularly deceased ones, who knows? If we're headed down a path that finds Jim Brown—as long as he isn't identified by name—is fair play in a football game, why couldn't someone do the same thing with Floyd Mayweather, Jr.?

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Electronic Arts has made no statement, other than EA Sports', in light of the Jan. 6 filing. Largely because it's a pre-emptive action, one can see that this is not a suit brought to protect a single product but rather, Electronic Arts is using its legal muscle to expand the boundaries of fair game for video games development at large. There's self interest in doing so, sure, but it could deliver benefits to others, too.

EA's done this kind of thing before. Whatever you think of EA, it was still the industry's big friend on the playground when it shut down Tim Langdell, the notorious "trademark troll" whose litigious ways essentially removed the word "Edge" from use in video games. EA, owner of Mirror's Edge, sued for the cancellation of Langdell's trademarks and won. Video games development no longer has to worry about that nuisance as a result.

What you're probably seeing here are games developers who look at their Hollywood counterparts and wonder why the hell that side is paid to include corporate symbols (as product placement), but putting the recognizable fuselage of a helicopter in a video game risks a nastygram and a demand for money from the legal division of a military contractor. Licensing represents a different, and in many cases greater burden to video games than films. And in sports video games, as Peter Moore told me, licensing concerns are an order of magnitude above the usual movie or comic book adaptation.

What people, places, and symbols are fair use in a sports video game?

A more reasonable outcome may mean that the distinctive shape of a football helmet, or tennis racquet, or other piece of equipment can be used without paying the vig to its maker. Maybe an unnamed but recognizable umpire gets included in a baseball game. Maybe a classic golf tournament is recreated and its field resembles and performs like the one from history. Who knows what the true dividing line is between the artistic representation of history and the commercial exploitation of it.

But I don't think this means the end of league licensing, and it won't mean the end of the exclusive ones EA Sports already owns.

EA Lawsuit Doesn't Mean Madden's Exclusive is a License to be Killed
Stick Jockey is Kotaku's column on sports video games. It appears Saturdays.