EA Says It's Going To Keep Using Manufacturers' Guns In Its Games -- It's Just Done Asking Permission

from the somehow-I-think-the-NFL-won't-push-over-as-easily... dept

Fri, May 10th 2013 4:11am — Tim Cushing

Given the current climate surrounding guns, violent video games and all points where the two intersect, it's not surprising that a large developer like EA would attempt to distance itself from gun manufacturers.

No, EA isn't going to stop making video games with real-life weapons in them. It's going to continue business as usual in that respect. What it is going to do is stop licensing the weapons.

[A]t least one game maker, the second largest by revenue in the United States, is publicly distancing itself from the gun industry, even as it finds ways to keep the branded guns in the games. Electronic Arts says it is severing its licensing ties to gun manufacturers - and simultaneously asserting that it has the right, and the intention, to continue to feature branded guns without a license.

A rep for EA says this decision has nothing to do with the NRA's immediate willingness to lay the blame for the Newtown shooting at the feet of violent video games. But that's a rather tough sell, especially considering the hard line EA is pursuing.

Gun licensing for games has never been particularly lucrative for gun manufacturers, at least not in terms of licensing fees. Most agreements were felt to be mutually beneficial: game developers were able to craft authentic weapons and gun manufacturers received free advertising and the best kind of product placement -- right in the virtual hands of potential customers.

Now, it seems the relationship has become mutually toxic.

"It gives publicity to the particular brand of gun being used in the video game," said Brad J. Bushman, a professor at Ohio State University who has studied video game violence. "On the other hand, it's linking that gun with violent and aggressive behavior."

Bushman's studies on video games and violent media have frequently resulted in dubious conclusions (to put it kindly), but if anyone's going to take him seriously, it's the NRA and gun manufacturers. What once looked like an ideal match now puts gun manufacturers' implicit endorsement of violent video games in a very unfavorable light.

EA may be able to help them out with this. It's not going to give up using real world weapons in its games -- it's just going to stop asking permission.

"We're telling a story and we have a point of view," EA's President of Labels Frank Gibeau, who leads product development of EA's biggest franchises, said in an interview. "A book doesn't pay for saying the word 'Colt,' for example."

Put another way, EA is asserting a constitutional free speech right to use trademarks without permission in its ever-more-realistic games.

EA is going to rely on fair use and it should have a fairly strong case. More promising is the fact that gun makers haven't been very litigious in the past. According to Reuters, a gun manufacturer has yet to sue a game developer over lack of proper licensing. However, the recently introduced friction between these two industries makes EA's new "license-free" stance a bit more combative that it would be otherwise.

This approach almost appears to be EA throwing down the gauntlet and daring embattled gun manufacturers to wander back out into the public eye. There's no way gunmakers will look any better pursuing licensing fees or suing for breach of contract, and EA knows this. Once again, I'm not buying EA's "no harm, no foul" statement in reference to the NRA's recent attempt to toss video games under the bus.

EA may have the upper hand at the moment, but Reuters mentions a pending lawsuit that could spell trouble in the future.

Aircraft maker Bell Helicopter, a unit of Textron Inc, has argued that Electronic Arts' depiction of its helicopters in "Battlefield" was beyond fair use and amounted to a trademark infringement. EA preemptively went to court, suing Bell Helicopter to settle the issue.

Should Bell prevail, EA may find gun makers willing to test the legal waters and attempt to pry EA's unlicensed guns from its cold, injunctioned fingers.

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Filed Under: copyright, fair use, guns, licensing, video games
Companies: ea, nra

45 Comments

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Ninja (profile), 10 May 2013 @ 3:28am

Every time I read anything connected to the video game hysteria I :rolleyes:

How the fuck have we become so driven by hysteria and moral idiocy? Cause gory games are there for a good 20 years now (Wolfenstein, Doom). Is it the effect of high def blood?
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- Anonymous Coward, 10 May 2013 @ 4:34am
  
  Re:
  The stupid thing is people don't think about it logically.
  
  Simple facts:
  There was gun crime before video games
  Video games like COD sell in the 8 million range these days
  
  So how on earth can violent video games like these cause gun crime? If it did we would see a lot more of it, statistically I think there is a decrease in violent crime (at least in the UK).
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 May 2013 @ 7:06am
    
    Re: Re:
    Statistically there is a sharp decline in violent crime in the US over the last two decades as well.
    [ link to this | view in chronology ]
- S. T. Stone, 10 May 2013 @ 4:42am
  
  Re:
  Any relatively young and potentially transformative artform goes through such issues.
  
  When comics became a big thing in the 1940s and 1950s, people feared they would turn kids into criminals and delinquents and possibly even sexual deviants. (It didn�t help that Fredric Wertham had whipped the country into a frenzy over the idea with Seduction of the Innocent.)
  
  Films went through a similar phase when the Hays Code restricted what filmmakers could do with the artform to protect the �moral sensibilities� of the country at large.
  
  I hope I don�t have to say anything about music (either rock�n�roll, hip-hop/gangsta rap, or any other �controversial� genre) or even books (which still get burned in some parts of the world).
  
  Videogames have to go through the same growing pains as these other artforms. Videogames have it a bit rougher because of the interactive nature of the medium. Violence in books and movies and music seem a little more �distant� (for lack of a better term) because you don�t really interact with those mediums in the way you interact with videogames.
  
  Moral panics eventually die out as those who started them die out. When the generation raised on Mario and Sonic take over the country, these arguments will become far less relevant.
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  - Ninja (profile), 10 May 2013 @ 6:07am
    
    Re: Re:
    Have my insightful vote and my hat off even though I wear none. You see, violent games are around for 20 years now, possibly a bit more. I wonder if comics took that long to be accepted naturally regardless of the violence. Focus on the US here, we know some parts of the world are still in the Cultural Middle Ages. I'm wondering if the fact that initially games had crappy graphics lead to this late overreaction or if the interaction part of the equation is what's keeping people from just chill and move on.
    
    Still, humans don't seem to evolve. History just repeats itself. And it's interesting how dull our memories are. The same ones criticizing games are probably the ones that rolled eyes when ppl made a fuss over violent comics...
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    - S. T. Stone, 10 May 2013 @ 6:45am
      
      Re: Re: Re:
      Technically, violent and otherwise offensive games have existed since the heyday of the Atari 2600. Custer�s Revenge stands as proof.
      
      Nobody raised a huge fuss over those games because they didn�t reach the same levels of popularity and �realism� as games such as Doom and Mortal Kombat. For all of the (correct) claims of racism and sexism about Custer�s Revenge, it remains the equivalent of stick figure drawings in comparison to the two games listed above. Even those two games garner a similar comparison when placed alongside the most recent iterations of those specific franchises.
      
      Get into the stories we can attach to these more-realistic-than-ever graphic depictions of violence and sensuality, and you have a whole new problem to worry about.
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      - harbingerofdoom (profile), 10 May 2013 @ 10:28am
        
        Re: Re: Re: Re:
        really? you're going to pick a game that was marked as adults only, marketed as adults only. originally sold in a brown wrapper and had a cover that was stamped with "Swedish Erotica", a moniker that was all about early 80s porn to decry how video game violence affects kids and then top it off with completely erroneous assumptions
        
        you sure you wanna stick with that one?
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        S. T. Stone, 10 May 2013 @ 2:19pm
        
        Re: Re: Re: Re: Re:
        Notice that I said �violent and otherwise offensive games�, not �violent games� without that other qualifier.
        
        I wanted to enhance the point that offensive imagery in video games has existed almost since the beginning. It took the release of games such as Doom and Mortal Kombat in the 1990s � games with both graphics and violent content far beyond what most other games of the era offered � for people to sit up and take notice. Now we�ve passed into an era where violence in videogames has become commonplace instead of �special� and those two games look as ancient today as Custer�s Revenge did when the 1990s rolled around.
        
        Oh, and I didn�t make a single argument about how violence affects kids.
        
        So�yes, I will stick with that one.
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      - John Fenderson (profile), 10 May 2013 @ 2:34pm
        
        Re: Re: Re: Re:
        Nobody raised a huge fuss over those games,/blockquote>
        
        I'm old. Old enough to remember when those games were new. Yes, people did raise a huge fuss about those (and later, tamer ones like Leisure Suit Larry.)
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      - Anonymous, 11 May 2013 @ 6:19pm
        
        Re: Re: Re: Re:
        One of the claims made against Custer's Revenge is that the Indian woman is tied to a post. She is not. Anyone who's ever played, or seen a screenshot of, the game can see there is nothing restraining her to that post.
        There are also hacked versions available in which the roles are reversed (see www.atariage.com ).
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  - Anonymous Coward, 10 May 2013 @ 9:45am
    
    Re: Re:
    In between the tv and the game scare, there was the DnD scare, this was shortly after the music scare.
    
    You see, in a free society, being free scares the hell out of everyone else.
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- Anonymous Coward, 10 May 2013 @ 4:56am
  
  Re:
  That's easy. By scapegoating easy targets for serious but difficult problems instead of addressing the real issues at hand.
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- DOlz (profile), 10 May 2013 @ 10:49am
  
  Re:
  Unfortunately its nothing new. When Ragtime was the rage people got the vapors because it was going to lead to moral decay. I'm sure there are many, many more examples older than that.
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Anonymous Coward, 10 May 2013 @ 4:19am

two piles of poop fighting each other, not sure which one to root for.
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- Ninja (profile), 10 May 2013 @ 6:16am
  
  Re:
  I know, root for mutual destruction =D
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  - S. T. Stone, 10 May 2013 @ 2:23pm
    
    Re: Re:
    The only winning move is not to play.
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Neckbeard, 10 May 2013 @ 4:27am

Yar har fiddle de de
Being a pirate is alright to be Electronic Arts is a pirate!
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Anonymous Coward, 10 May 2013 @ 4:29am

EA is going to have a much harder time getting away with this now after they have already been paying licensing.
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- Anonymous Coward, 10 May 2013 @ 4:30am
  
  Re:
  I additionally find it funny that the king of DRM is now resorting to just taking what it thinks should be free.
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  - gnudist, 10 May 2013 @ 7:36am
    
    Re: Re:
    "Fair use and public domain for me but not for thee" - every big content producer ever
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saulgoode (profile), 10 May 2013 @ 4:30am

A tough sell
To prove trademark infringement, Bell will need to show dilution of their brand. In other words, they will have to provide the court with evidence indicating that video gamers are less likely to buy Bell helicopters as a result of them being shown in the game. Somehow I don't see that happening.
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- JohnG (profile), 10 May 2013 @ 5:05am
  
  Re: A tough sell
  These companies employ lawyers with brains, do they not? What am I saying, of course they do... the lawyers know this won't fly, legally speaking, but they're still getting paid so what do they care?
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- G Thompson (profile), 10 May 2013 @ 10:45am
  
  Re: A tough sell
  Well that's easy... Play BF3 as an Engineer (like I do 80% of the time) equip Stingers and then Point your nice kill rocket at the nearest Bell Helicopter (Scout Heli) unless the pilot has ECM or Flares equipped they are disabled in 1 hit and destroyed in 2 (or less sometimes if they crash).
  
  Basically means Bell Heli's now in BF3 are flying coffins, ie: CRAP!!!!!! though the Attack heli's now aren't much better..
  
  Disclaimer: I love blowing up heli's.. though I normally use RPG/SMAW's to do so. Muwahahahaha
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PaulT (profile), 10 May 2013 @ 4:33am

"EA is going to rely on fair use"

Funny how corporations always see the legality and advantages of fair use when they need to use it themselves, isn't it?
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- The Real Michael, 10 May 2013 @ 4:46am
  
  Re:
  One has to wonder if EA would take exception to someone else using their products without seeking their permission. In their own words, "...EA is asserting a constitutional free speech right to use trademarks without permission in its ever-more-realistic games." If a smaller company decided to depict EA's IPs in one of their games, do you think they'd take exception?
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  - Anonymous Coward, 10 May 2013 @ 9:21am
    
    Re: Re:
    EA would lock, load and fire.
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    - The Real Michael, 11 May 2013 @ 5:23am
      
      Re: Re: Re:
      Oh definitely.
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Anonymous Coward, 10 May 2013 @ 4:38am

http://arstechnica.com/gaming/2013/05/no-ea-wont-license-guns-in-its-2013-games-but-it-never-has/

EA never licensed guns.
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Anonymous Coward, 10 May 2013 @ 4:40am

What, exactly, is being licensed?
- patent? ... that would be silly
- copyright? ... it is not a copy
- trademark? ... not sure that makes any sense

I suppose it might be one of those new fangled imaginary property thingies.
- publicity right? ... maybe, but prob not
- look and feel? ... is this really a thing? It may look like the same weapon, but I can't actually feel it - so that is also rather silly.

So what is it anyway.
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- JWW (profile), 10 May 2013 @ 6:28am
  
  Re:
  I guarantee you that if the players in the game were drinking a can of Coke EA would be sued to high heaven to pay licensing fees.
  
  Why don't the gun manufacturers get the same consideration the Coca-Cola company would get?
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  - Anonymous, 11 May 2013 @ 6:12pm
    
    Re: Re:
    Or the sports teams that EA features in several of their games?
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  - nasch (profile), 12 May 2013 @ 2:02pm
    
    Re: Re:
    I guarantee you that if the players in the game were drinking a can of Coke EA would be sued to high heaven to pay licensing fees.
    
    Coke would normally pay EA for product placement to get Coke into a game. Why do you think they would sue if it got put in for free?
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Anonymous Coward, 10 May 2013 @ 4:49am

Have to agree with EA here...
How exactly is a virtual representation of a gun or a helicopter in a game going to create confusion in the market? It's not like anyone who is looking to buy either of these things will get confused and decide to buy the video game instead because it's the same thing but cheaper. The only argument I could possibly see is a claim that the public is being mislead into thinking that the manufacturer endorsed the use of their product in the game which can be handled simply like it is everywhere else with a simple disclaimer added to the fine print of the packaging.
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- Anonymous Coward, 10 May 2013 @ 5:08am
  
  Re: Have to agree with EA here...
  "Sorry but I will not be purchasing one of your helicopters today"
  "Why not sir?"
  "Well I tested them on on a game and they blew up a little easily so I'm going to go with a tank instead..."
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- Anonymous Coward, 10 May 2013 @ 5:27am
  
  Re: Have to agree with EA here...
  Good question. And how does one license the use of ones trademark? It really does sound silly.
  
  Psssst - hey ... wanna impersonate my company for a periodic fee? Here is a list of things you can not do.
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- Anonymous Coward, 10 May 2013 @ 7:15am
  
  Re: Have to agree with EA here...
  same thing but cheaper
  
  Let's not rule out any confusions prematurely.
  
  Expect a grass roots movement to shift people from guns to games, just like proposed transitions from animal testing to biosimulation, or rape to pornography. No reason to go backwards provided the replacement is compelling. And here, the satisfaction of using familiar brands is a key part of the appeal.
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Anonymous Coward, 10 May 2013 @ 5:10am

If EA need to license images of real objects, so would every photographer who sold photos including real objects. Film makers would also be required to....; they do so perhaps that's where this silly idea came from.
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- Anonymous Coward, 10 May 2013 @ 6:29am
  
  Re:
  The situation with movies is usually the exact opposite though where the film producers want to command the manufacturer to pay a hefty fee for strategic product placement in the film. EA doesn't care about getting paid to feature a product. They just want to make a realistic game.
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CSMcDonald (profile), 10 May 2013 @ 5:29am

Um. Read the ARS article instead
They did actual research instead of falling for bad Reuters reporting. I really expecte better of Techdirt than this sort of parroting.

http://arstechnica.com/gaming/2013/05/no-ea-wont-license-guns-in-its-2013-games-but-it -never-has/

"Yesterday, Reuters "broke" the story that Electronic Arts was taking steps to distance itself from real-world gun makers, cancelling licensing deals while still maintaining the right to use images of those real-world weapons in its first-person shooters. "The action games we will release this year will not include licensed images of weapons," EA spokesperson Jeff Brown said matter-of-factly in the story.

What that story failed to make clear was that EA has never paid or been paid to feature specific guns in its games. This year's titles will be no different."
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Bengie, 10 May 2013 @ 5:48am

Trademarks
Trademarks are meant to keep customers from being confused about which product they are buying or false advertisement.

I don't see any issue with someone using a trademark of another company in a non-advertising way that mimics real world use of said product.
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Anonymous Coward, 10 May 2013 @ 5:55am

Gun mnufacturers worried about controversy? I don't think so
I doubt that the NRA or gun makers are really worried about any 'controversy' about guns appearing in games and being associated with violence and aggressive behavior.

I mean heck, one gun manufacture was advertising a REAL gun for KIDS, not just 10+ year olds hunting with dad, but even 5 year olds. (They've since taken down their website and twitter account after all the backlash following a 5 year old using one of those guns to shoot and kill their 2 year old sister, because the mother thought the gun wasn't loaded)
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Anonymous Coward, 10 May 2013 @ 6:58am

Its just EA not wanting to pay since development costs are going up.
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Paul Renault (profile), 10 May 2013 @ 6:58am

But that's a rather tough sell, especially considering the hard line EA is pursuing.

Are you talking about their stance vis-�-vis DRM/always-connected vs. not calling their customers thieves?
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s7, 10 May 2013 @ 12:01pm

Pssh, me pay you for showing your products in my game that sells millions of copies every year. NO, you pay ME!!

That's how it should have went down. Product placement in movies helps offset the cost to produce the movie. Should be the same for games. Not that I want to see tons of product placement in games, but for some games it can actually make the game more immerse. Racing games, with real brand banners around the tracks, Pirelli & Goodyear tires on the cars, brand name hop-up parts to upgrade your cars, etc..
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Uriel-238 (profile), 11 May 2013 @ 10:32am

Turn the tables...
If I were a weapon manufacturer, I'd offer a nominal fee to EA make my products the most badass in the game.
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