Federal Court Affirms Activision's First Amendment Rights In Using Humvees in 'Call Of Duty' Game

from the humdinger dept

Almost exactly a year ago, we first wrote about a trademark lawsuit brought by AM General LLC, the company that makes Humvee vehicles, and Activision. At issue is the inclusion of historically accurate Humvee vehicles in the publisher's Call of Duty games. AM General decried those depictions as trademark infringement, leading Activision to say its use was protected by the First Amendment, given that the entire goal here was to accurately depict warfare in an artistic fashion. Shortly after, the ESA chimed in with an amicus brief siding with Activision. Given the implications for the gaming industry should AM General win the suit, this was no surprise.

Well, fortunately for creative expression in gaming, the court has ruled and has sided with Activision.

In his ruling this week, though, District Judge George B. Daniels dismissed AM General's claim. That decision hinged in part on a 1989 precedent that established that artistic works could make reference to outside trademarks as long as the usage was relevant to the work and did not "explicitly mislead as to the source of the content or work."

The court then went through an eight-prong "Polaroid" test (named after a precedential 1961 case) to determine whether Activision's use of Humvees amounted to a legally relevant "explicit misleading" that would trump First Amendment protections. As part of that argument, AM General submitted a survey it conducted showing 16 percent of consumers "were confused as to AM General's association with Call of Duty." As Judge Daniels notes, "less than 20 percent confusion regarding two companies' 'association'... is at most some confusion" and does not amount to the "particularly compelling" confusion required by legal precedent.

The court actually continued on in its analysis as to why AM General's claims were nonsense. It's a fairly thorough debunking by the court. Ultimately, however, the court dove into the impact that ruling otherwise would have on the First Amendment rights for artistic expression in mediums where realism is part of the art.

Daniels writes that "if realism is an artistic goal, then the presence in Modern Warfare games of vehicles employed by actual militaries undoubtedly furthers that goal." And even if that commitment to realism causes a modicum of brand confusion in this case, it's not enough to override the First Amendment protections that video games have enjoyed since a 2011 Supreme Court ruling.

In other words, the tiny bit of maybe, potentially confusion that AM General ginned up in its filing doesn't remotely undue the protections artists and content creators enjoy for free and open expression. You know, the type of freedoms that the US Military has helped our country secure... often times using Humvees!

It's good to see a court side with free expression over corporate protectionism every once in a while.

Filed Under: 1st amendment, humvee, trademark, video games
Companies: activision, am general

ESA Steps In With Amicus Brief In Support Of Activision Versus Humvee

from the hum-dinger dept

A short while ago, we discussed a rather concerning lawsuit brought by AM General LLC, the company that makes Humvees, against Activision, the game publisher that occasionally publishes Call of Duty games that include depictions of Humvees. AM General's claims are pretty silly, suggesting that players of the games will think that those games were somehow created by or endorsed by AM General. I can't imagine that's the case; instead, most people are likely to think that Activision is attempting realism in their warfare game, since you basically cannot make an American warfare game accurately without including Humvees. Activision's response was on First Amendment grounds, arguing that its games are partly an historically accurate work of art, for which including Humvees is accurate and fair use.

As we pointed out in our original post, this case has great implications for the wider video game industry. Because of that, perhaps it's not hugely surprising to see that the Entertainment Software Association has jumped into the case with an amicus brief arguing for the granting of Activision's summary judgement motion. The whole thing is worth reading, but you can tell that the ESA's viewpoints on this are framed by the wider gaming industry.

AM General LLC’s (“AM General”) lawsuit raises issues of substantial importance to the video-game industry. Today’s video games are exceptionally diverse in their artistic expression, ranging from the action-adventure of Activision’s Call of Duty franchise, to educational games like Where in the World is Carmen San Diego?, to sports-themed games like Madden NFL, to historical simulation games like the Civilization franchise, to games that are derived from motion pictures like Star Wars or that inspire motion pictures like Assassin’s Creed. Whether factbased, fictional, or somewhere in between, many of these games refer to or incorporate real-life historical and cultural elements – often including real products like the military vehicles at issue in this case, and the trademarks, trade dress, and other distinctive elements used to accurately identify and depict those products – to create realistic interactive environments that facilitate expression, enhance verisimilitude, and enrich the user experience.

If AM General succeeds in punishing Activision for exercising its First Amendment right to depict realistic U.S. military vehicles in Call of Duty – or in forcing Activision to endure the burdens of a trial to vindicate its First Amendment rights – ESA’s members and gamers will suffer. Video-game developers and publishers will be exposed to even more frequent litigation, with some developers and publishers foregoing the use of real products in their works to avoid being dragged into court. Because AM General’s theory is antithetical to the rights of ESA’s members – and is irreconcilable with well-settled authority governing the use of real products in expressive works – ESA respectfully requests that this Court grant Activision’s motion for summary judgment.

There are many reasons why AM General's lawsuit should fail, but the risk to artistic output must certainly be first and foremost. The idea that a storied vehicle used in American warfare could be blocked from being depicted in artistic expression over intellectual property rights is purely antithetical to the First Amendment. What I suspect is happening here is something else that regularly annoys me: the dismissal of video games as artistic expression. After all, it's not as though we've heard about many fights between the Humvee people and the film industry. And, yet, the number of depictions of Humvees in TV and film is countless. So why should Call of Duty be any different?

The ESA brief makes this point in the brief.

VIDEO GAMES ARE CULTURALLY SIGNIFICANT EXPRESSIVE WORKS Since the creation of the first electronic game in the 1950s – a highly pixelated version of tic-tac-toe entitled Noughts and Crosses3 – video games have evolved into complex works that are similar to interactive movies. Video games equal books, films, and television shows in terms of cultural significance and share myriad elements with these more traditional forms of expression. Like novels, many video games have multi-dimensional characters, complex storylines, and carefully crafted dialogue. Like films and television shows, many video games contain story arcs, visual images, and musical scores that contribute to their emotional impact.

Video games have become an integral part of American culture. In 2018, nearly 165 million adults in the United States played video games, and 75 percent of all Americans had at least one gamer in their household.

In other words, Call of Duty is every bit as much art and culture as Saving Private Ryan, in which case it is afforded all of the same First Amendment and fair use protections as that movie. Given that, the use of a Humvee is pretty clear fair use in an expressive work. If found to be otherwise, the gaming industry writ large is in a whole lot of trouble, particularly for any game that wants to depict realism.

But I don't think it'll get that far.

Filed Under: 1st amendment, art, call of duty, humvee
Companies: activision, am general, am general llc, esa

Activision Shouts 'First Amendment' Over Humvee's Trademark Lawsuit For Call Of Duty Depictions

from the humming-along dept

If we were to judge the success of a video game by just how many times a particular series had appeared in Techdirt posts, Call of Duty would be one of the contenders for the top rank. Publisher Activision has been on both ends of absurd IP issues, facing publicity and trademark attacks from historical figures over depictions in the game series, while also occasionally mulling trademark actions against non-competitors over poo-puns.

Well, Activision once again finds itself on defense in a trademark lawsuit over the game series, this time brought by famed military auto-maker Humvee. In its warfare series, which aims to be a realistic artistic expression of armed conflict, Humvees of course make regular appearances. The vehicles are ubiquitous on any battlefield in which America participates. Activision, in a motion for summary judgement, has asked the court to view all of this as an attack on the First Amendment rights the publisher enjoys.

"This case is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare," opens a summary judgment motion filed on Friday by Activision. "AM General LLC, a government contractor that manufactured military 'HMMWV' (or 'Humvee') vehicles for the U.S. military, seeks to use trademark law to control the mere depiction of those vehicles in Defendants’ fictional Call of Duty video games. The use of purported trademark rights to restrict the content of expressive works is dangerous under any circumstance. But the claims in this case are particularly egregious because they involve a U.S. military vehicle paid for by American taxpayers and deployed in every significant military conflict for the past three decades."

It's an interesting point to make, though we'll have to see how the court views it on the question of the First Amendment. Regardless, aggressive trademark enforcement over a vehicle depiction that has cultural and historical significance, and one which is generally paid for by American tax dollars, certainly sounds like First Amendment territory. If one were to create an artistic expression of historical fiction in game form to depict modern day warfare, how could one not include Humvees? The vehicle's omission would frankly be glaring in the extreme.

Humvee's maker, of course, sees it differently and claims Activision's own internal communication suggests the company knew what it was doing was wrong.

AM General, of course, disagrees with the proposition that it can't protect its intellectual property from unauthorized use — especially when Activision has licensed other material for its multibillion-dollar game franchise and when in the games at issue, characters call out to one another to “get in the Humvee.”

In its own summary judgment memorandum, AM General asks a New York federal judge to dispose of Activision's affirmative defense of laches, meaning a prejudicial delay in asserting a claim. Although the defendants point to how Humvees have become "common in fictional movies and television shows" — The Hurt Locker, 24, Sicario: Day of the Soldado, etc. — AM's attorneys have spent months collecting discovery from Activision and assert the trademark misappropriation was not secret inside the video game's headquarters.

Most of the discovery being referenced is yet to be public. Depositions are under seal and there is a ton of material that has been redacted. What's visible is some general information from Activision's internal team noting that there is some risk in the game being too realistic as it could invite the very sorts of IP fights that it is now enduring.

Again, what's the other option? Games are works of art and protected by the First Amendment. Humvees have played a storied role in American warfare for decades. If this art is to be made, and is to be realistic, it essentially cannot be made without including Humvees any more than could a war movie.

Filed Under: 1st amendment, call of duty, depictions, free speech, historical accuracy, humvee, video games
Companies: activision, am general