Court Rules Gran Turismo Protected By 1st Amendment In Including Company Logos For Realism

from the track-speech dept

Wed, Sep 9th 2015 3:23pm — Timothy Geigner

Ever since video games got to a point of enough realism, how those games depict real-life locations and real life "props" has become an interesting question due to, of course, trademark law. Electronic Arts recently stepped into this question, for entirely unrelated reasons, when it announced it was no longer going to ask for permission to depict realistic and branded weapons in its shooting games. The question has always been more prevalent in the world of sports games, however, with stadiums named for advertising partners and advertising depicted all over the stadiums and equipment within the sport.

Well, we've got another case of a video game producer attempting to rely on First Amendment protections to be able to depict a third party brand within its game, as Gran Turismo made use of Italian flooring company Virag's logo for realistic effect. And, according to the outcome between Virag and Sony in California, the First Amendment wins.

Virag is an Italian flooring manufacturer -- and it also sponsors car races. Its name and logo have appeared on tracks in Sony's realism-obsessed Gran Turismo games, as seen in the image above, and the company sued Sony in California -- but a judge just tossed out most of Virag's claims.

With this order, the First Amendment status of video games as an expressive medium continues to be upheld. "Gran Turismo 5 and Gran Turismo 6 are expressive works that qualify for First Amendment protection," judge Laurel Beeler wrote.

This is good news on several levels. To start, having a judge slap down an obnoxious attempt by a company to sue over the depiction of that company's brand, essentially free advertising, is always welcome. Add to that the further cementing of video games as a medium of expressive art, something that really ought to have been settled in the minds of the masses by now. And, finally, anything that gives game developers a greater sense of freedom to pursue realism with less regard for the insane permission culture that has invaded the arts works for me as well.

As a few commentators have pointed out, Sony likely prevailed because the case was heard in the US, where we have fair use provisions with some actual teeth, compared with the EU where, if anything, the culture of permission is even greater. I would argue that if a region's intellectual property law is such that companies feel emboldened to try to end what is essentially free advertising within art, some revisions to those laws are needed.

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Filed Under: first amendment, gran turismo, logos, realism, video games
Companies: sony, virag

39 Comments

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Anonymous Coward, 9 Sep 2015 @ 3:30pm

I don't see this ruling surviving an appeal for the simple fact that by including copyrighted logos in their videogames, it implies that the branded company endorses that videogame. If this ruling survives, it's going to have a debilitating effect on someone's copyright.

In effect, this ruling will allow advertisers to use brand names and logos from other companies in their advertisements, simply by driving past the logo. This is a bad ruling that won't survive an appeal.
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- Keroberos (profile), 9 Sep 2015 @ 4:07pm
  
  Re:
  including copyrighted logos in their videogames
  Logos and corporate/product names are covered by trademarks not copyright. This is a textbook case of fair use of the mark(s)/names in question.
  will allow advertisers to use brand names and logos from other companies in their advertisements
  This is actually specifically allowed in US trademark law, as long as the use is descriptive of of the others product.
  [ link to this | view in chronology ]
- Anonymous Coward, 9 Sep 2015 @ 4:08pm
  
  Re:
  You're confused.
  
  It's already legal for advertisers to use the brand names and logos from competitors in their advertising, as long as they do so without confusing consumers or misrepresenting their competitor's products/services.
  
  You must not watch a lot of TV in the US. There are a bunch of commercials that depict their competitors brands and logos.
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- techflaws (profile), 9 Sep 2015 @ 9:48pm
  
  Re:
  it implies that the branded company endorses that videogame
  
  Or not.
  [ link to this | view in chronology ]
- JMT (profile), 9 Sep 2015 @ 10:15pm
  
  Re:
  Every single thing you wrote is wrong.
  [ link to this | view in chronology ]
  - Michael, 10 Sep 2015 @ 5:15am
    
    Re: Re:
    To be funny, I was going to select and post something from his comment that was not wrong so I could argue with you.
    
    I have failed to find anything, so my plan has been foiled.
    [ link to this | view in chronology ]
- Anonymous Coward, 10 Sep 2015 @ 12:16pm
  
  Re:
  "by including copyrighted logos in their videogames, it implies that the branded company endorses that videogame"
  
  Not really. It depends on how and where the logos are being used. If they are primarily 'background' visuals, which simply add depth of Realism to a scene, then it neither implies sponsorship nor endorsement of the game and would most likely survive court challenges.
  
  And frankly speaking, the reason why you will often see logos, etc. replaced or blurred out in movies/media is not because of copyright concerns, but rather the Production company is unwilling to give out free advertising.
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Anonymous Coward, 9 Sep 2015 @ 3:36pm

Suing is doubly stupid because the logos are there because the company wanted them plastered all over the cars/raceways. That's the entire reason they sponsor raceteams & events in the first place
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- Anonymous Coward, 9 Sep 2015 @ 3:57pm
  
  Re:
  No. Wrong. It's a new mode of sponsorship: Censored Sponsor. They'll sponsor a team or event but only the people they approve can actually see the logos. And they don't want the people that make GT to see the logos.
  [ link to this | view in chronology ]
  - Sheogorath (profile), 9 Sep 2015 @ 4:05pm
    
    Re: Re:
    I think you meant And they don't want the people who play GT to see the logos. Of course, they have no control over it, given the fact that both devs and gamers will still see the logos if they watch motor sports on TV. :)
    [ link to this | view in chronology ]
Sheogorath (profile), 9 Sep 2015 @ 3:50pm

Mike Masnick absolutely loves it when companies' rights are struck down. Blah blah blah, shill shill shill...
You don't think I need a sarc mark for the above, do you?
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Uriel-238 (profile), 9 Sep 2015 @ 4:40pm

Is this very much different than...
Will Graham's Di-Gel habit in Thomas Harris' Red Dragon?

Not sure if that's to suggest that Thomas Harris endorses Di-Gels.
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Anonymous Coward, 9 Sep 2015 @ 5:11pm

If this decision holds, it could send chilling shockwaves through Hollywood. Meaning that movie studios could use this as a signal that they don't have to pay companies for product placement.

My apologies but I just don't see this decision surviving an appeal. The decision was the wrong decision that this idiot judge could have made. It's one thing if companies are filing ridiculous lawsuits over copyright and trademark rights but this decision is going to have serious ramifications if it's allowed to stand.

This decision basically stripped the trademarks that companies and businesses have registered in their names and placed them under the protection of the first amendment so that anyone can use those brand names without having to compensate the company for the right to do so.

Expect not only Virag to appeal but also expect to see 'friend of the court' amicus briefs in favor of Virag. The judge simply didn't consider what other industries might be affected by this decision.
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- Anonymous Coward, 9 Sep 2015 @ 5:27pm
  
  Re:
  You are confused, Hollywood doesn't pay companies for product placement. It's the other way around.
  
  Also you don't seem to fully understand the issue. Armchair quarterback the judge after you learn the difference between a trademark and a copyright.
  [ link to this | view in chronology ]
- That One Guy (profile), 9 Sep 2015 @ 5:37pm
  
  Re:
  This decision basically stripped the trademarks that companies and businesses have registered in their names and placed them under the protection of the first amendment so that anyone can use those brand names without having to compensate the company for the right to do so.
  
  Umm, no, not quite. If someone tries to slap a Pepsi logo on their product, that's still not acceptable, all the ruling is saying is that you can incorporate the logo in something else, like a game or short film or something, and not have to ask permission to do so first, as should be the case. Trademarks are to prevent customer confusion, there's not likely to be much of that regarding random trademarks on in-game ads for a racetrack.
  
  Expect not only Virag to appeal but also expect to see 'friend of the court' amicus briefs in favor of Virag. The judge simply didn't consider what other industries might be affected by this decision.
  
  Because it's not the judge's job to consider that sort of thing. So what if it might have an impact on another industry, he was ruling on the case before him, and the facts before him led him to rule a particular way.
  
  The idea that judges should always have to take into consideration how their rulings might affect other companies/industries is a horrible one, as it would pretty much ensure that no rulings would be made that might negatively affect a company/industry.
  
  "Can't rule against company A, because that would affect companies B, C, and D, who do similar things, so even though A is in the wrong, I'm going to have to side with them here."
  
  No, just no. Free speech is more important that the profits of companies, so if this ruling negatively affects them, tough.
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- Anonymous Coward, 9 Sep 2015 @ 6:45pm
  
  Re:
  "If this decision holds, it could send chilling shockwaves through Hollywood. Meaning that movie studios could use this as a signal that they don't have to pay companies for product placement."
  
  That's absolutely the best two sentences of satire I've read in a very long time.
  [ link to this | view in chronology ]
- Sheogorath (profile), 9 Sep 2015 @ 7:12pm
  
  Re:
  Meaning that movie studios could use this as a signal that they don't have to pay companies for product placement.
  You're obviously confused. This case is about including trademarks for purposes of veracity, whereas product placement is a form of sponsorship wherein PepsiCo pays a movie studio to have characters drinking nothing but Mountain Dew (for example). Basically, this case sets the precedent that a movie studio or games developer/publisher don't have to clear the appearance of logos if they appear the same way in real life, it says nothing about the right of movie studios to turn down sponsorship fees for product placement, which they've always had.
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  - Anonymous Coward, 9 Sep 2015 @ 7:31pm
    
    Re: Re:
    You know that's all product placement. There is nothing in a modern big budget movie that's not supposed to be there, from the drink in the actors hand to the smallest logo on a building.
    [ link to this | view in chronology ]
    - Sheogorath (profile), 9 Sep 2015 @ 8:16pm
      
      Re: Re: Re:
      My point that it's the movie studios that get paid sponsorship fees for product placement rather than having to pay licencing fees to include the logos still stands, but nice attempt at redirection. I pity the fool...
      [ link to this | view in chronology ]
      - Anonymous Coward, 9 Sep 2015 @ 8:41pm
        
        Re: Re: Re: Re:
        Video games get paid too. Why would you pay a fee to someone if you can get a payment off someone else?
        Actually if you read the decision on this the judge has allowed the case to continue on right of publicity of the owner, so this may very well cost Sony in the end
        
        Your point seems to be about a distinction between products for placement and for 'veracity', and about a precedent that can't of been set as this wasn't a ruling, just an "ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION TO DISMISS" (caps from the document)
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        Sheogorath (profile), 10 Sep 2015 @ 5:32am
        
        Re: Re: Re: Re: Re:
        Actually if you read the decision on this the judge has allowed the case to continue on right of publicity of the owner, so this may very well cost Sony in the end.
        Doubtful. Any sensible judge will rule that Virag is basically enjoying free product placement and thus rule against them.
        [...] "ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION TO DISMISS" (caps from the document).
        A document which isn't linked to from either this article or the Gamasutra one, and which would probably be a pain in the arse to read on a mobile phone (PDF) if it was. Your point?
        [ link to this | view in chronology ]
        
        This comment has been flagged by the community. Click here to show it
        
        Anonymous Coward, 10 Sep 2015 @ 10:50am
        
        Re: Re: Re: Re: Re: Re:
        Don't trip over your spectrum on the way out, imbecile.
        [ link to this | view in chronology ]
        
        Sheogorath (profile), 10 Sep 2015 @ 12:38pm
        
        Re: Re: Re: Re: Re: Re: Re:
        AC said whilst gazing into the mirror.
        [ link to this | view in chronology ]
        
        Sheogorath (profile), 11 Sep 2015 @ 1:01am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I was wrong, apparently. It wasn't an AC who left the comment I last replied to, it was fqk.
        [ link to this | view in chronology ]
- JMT (profile), 9 Sep 2015 @ 10:35pm
  
  Re:
  "This decision basically stripped the trademarks that companies and businesses have registered in their names and placed them under the protection of the first amendment so that anyone can use those brand names without having to compensate the company for the right to do so."
  
  It's a bit ironic that you would call the judge an idiot and then demonstrate your complete confusion of copyright and trademarks. These are two different sets of laws for two different purposes, and it's sad how often the two are incorrectly conflated under the guise of "intellectual property". You should learn the difference before making any more dire predictions about the fate of poor old Hollywood.
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- Ninja (profile), 10 Sep 2015 @ 4:55am
  
  Re:
  I don't think so. Brand placement is important to the point companies pay to appear even if it's some random stuff that doesn't impact the movie at all if the brand changes. However we are talking about things that make a difference. If Pepsi has a landmark building that's known all over the world it doesn't make sense to replace it with a "Coke" building because you are recording the landscape and the landscape is well known.
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- Michael, 10 Sep 2015 @ 5:21am
  
  Re:
  If this decision holds, it could send chilling shockwaves through Hollywood. Meaning that movie studios could use this as a signal that they don't have to pay companies for product placement.
  
  Quite the opposite. Hollywood MUST like this ruling. Had it gone the other way, it could stand that any time a movie studio decided to film something in Times Square, they would be forced to get permission from THOUSANDS of trademark holders. There is probably no urban environment that Hollywood would ever be able to film in again.
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Anonymous Coward, 9 Sep 2015 @ 5:37pm

Expect the decision to be appealed. 'Nuff said. The judge's ruling was wrong and it will be appealed.
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- Anonymous Coward, 9 Sep 2015 @ 6:04pm
  
  Re:
  You don't have to keep posting the same comments to the article. We get that you disagree with the ruling. You already said that twice before.
  [ link to this | view in chronology ]
- Anonymous Coward, 9 Sep 2015 @ 6:23pm
  
  Re:
  If you say it enough times maybe it will become true?
  [ link to this | view in chronology ]
- G Thompson (profile), 11 Sep 2015 @ 2:10am
  
  Re:
  Are you of the opinion if you say something over and over again it will actually be taken as gospel or magically become factual?
  
  LOLOLOLOL
  
  You're an idiot
  You're an idiot
  You're an idiot
  [ link to this | view in chronology ]
Anonymous Coward, 9 Sep 2015 @ 7:54pm

A pyrrhic victory thus far .
From Reuters...
"At the same time, U.S. Magistrate Judge Laurel Beeler in San Francisco allowed Virag SRL and its lawyer James Kim of Cole Schotz Meisel Forman & Leonard to pursue their claim that Sony violated the personal right of publicity of Virag's owner, Mirco Virag, by depicting the name of the company in the games without permission. The opinion was released on Friday."

So the first amendment stuff is thrown out, but the case continues on right of publicity.
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- Michael, 10 Sep 2015 @ 5:28am
  
  Re: A pyrrhic victory thus far .
  That is true, but I would expect that Virag will have quite the uphill battle on that case as well. It is going to be pretty difficult to make an argument that, from a publicity standpoint, this is any different than someone filming the logo as part of a movie or documentary. The logo and name are in public places, the company and it's owner are public figures, etc.
  
  It also might be different if the logo and name were central to the game, but they aren't and are only really there for realism.
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Mark Wing, 9 Sep 2015 @ 8:43pm

This ruling could have a chilling effect on asshole millionaires, who might not be able to shake as many people down.
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- Anonymous Coward, 9 Sep 2015 @ 9:06pm
  
  Re:
  Not a ruling
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bureau13 (profile), 10 Sep 2015 @ 7:21am

The really dumb thing about all of this is that, had Sony asked Virag if they wanted to pay a small product placement fee to get their logo in the racing game, they very well may have done so, for the same reason they pay a very large fee to display their logos on the actual tracks. This knee-jerk reaction to no one formalizing an agreement is beyond idiotic, and not at all in their best interests as a business.
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Mason Wheeler (profile), 10 Sep 2015 @ 8:05am

Welcome to another episode of Techdirt Advertising Irony Theatre...
Seen on this page: http://imgur.com/SKufEnW
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- Leigh Beadon (profile), 10 Sep 2015 @ 8:36am
  
  Re: Welcome to another episode of Techdirt Advertising Irony Theatre...
  That one just seems perfectly contextually appropriate, and not ironic at all!
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Reverend Dak (profile), 15 Sep 2015 @ 12:44am

They should be paying us, or subsidizing the costs of these games, for spamming us with their brands. Not the other way around. It's not like a racing game like Gran Turismo is going to be controversial like a game like GTA.
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