Last week it was reported that Electronic Arts (EA) is ending its licensing agreements with firearms companies, but stated it will continue to use the images and names of real guns in its first-person shooter video games. Using realistic weaponry and brands of actual firearms adds “enhanced authenticity,” says the maker of games like Medal of Honor: Warfighter and Battlefield. But critics say both that it promotes gun brands and links that brand with violence and aggressive behavior.

Some speculate that game makers want to distance themselves from the gun industry during the national debate on violence, gun control, and the right to keep and bear arms. EA said politics and NRA comments critical of game makers had nothing to do with its decision. I don’t doubt that at all. But as usual, it’s not about guns; it’s about control. This time it’s about control of intellectual property rights. Legally speaking, it is critical that a trademark owner control the use of its marks, even if it isn’t getting paid for them, or it may risk losing the ability to enforce its rights in other areas.

EA says it has never paid a licensing fee to a gun manufacturer nor has it ever been paid to use specific gun models or trademarks in its games, even though it had license agreements with multiple gun makers. Now, EA says that depicting actual products and identifying their brands is “fair use” and compares the role-play games to a book telling a story. From a legal perspective, this point of view is typically valid for books and movies, but would not likely fly for a traditional board game or toys, for example. So is a first-person shooter video game more like a movie or a toy? Different U.S. courts have reached different conclusions, so it’s still an open question.

Although many airsoft producers have been sued in the last few years, I have not found a single case where a firearms manufacturer has sued a video game company for using identifiable or branded guns and accessories without a license. There may be some mutual benefit to both companies, while avoiding an official relationship where one could be tainted by bad press against the other. Plausible deniability—in both directions. However, Bell Helicopter, a unit of Textron Inc., and EA are embroiled in litigation over unlicensed use of its military helicopter names and images. EA contends that the use is expressive and entitled to First Amendment protection, thus no license is necessary. Bell asserts the use—in the game, packaging, and marketing materials—infringes its intellectual property rights.

First Amendment and “Fair Use”

These issues really aren’t about a pure First Amendment right of free expression. EA isn’t making a social statement about the weapons or aircraft it depicts or the brands. The weapons and aircraft are not trivial background scenery, incidental to the “story.” This is a commercial entertainment product using the intellectual property of another to make the experience more “authentic” and, therefore, more desirable. More valuable.

EA and Bell tried but were unable to negotiate a license agreement, so EA went forward with Battlefield 3 as planned. Unlike gun makers, whose products (or airsoft facsimiles thereof) may achieve added popularity—and sales—from depiction in the games, Bell has no civilian market for its multimillion-dollar military helicopters. One can presume Bell was seeking to be paid, not just acknowledgement in the game’s credits.

Last year, EA asked the court to dismiss Bell’s claims on First Amendment and fair use grounds. The court denied both and the case is on track for a jury trial next month. Continuing licensing relationships with gun makers, licenses EA contends are unnecessary even if no payment is made, would be an inconsistency likely to be brought to the jury’s attention. Unless the case settles, we may soon have a verdict—and an indication of which way the practice of licensing agreements between gun makers and game makers is trending.

About the Author

Glenn Bellamy is a Partner with more than two and a half decades of intellectual property litigation, patent and trademark prosecution, and U.S. Customs enforcement experience, first in Seattle and now in Cincinnati. He counsels clients on strategic plans for international Intellectual Property protection of everything from firearms and hydraulic machinery to toys and games. Glenn has litigated Intellectual Property cases throughout the country in federal courts and before the International Trade Commission. You can learn more at Glenn’s website, www.Armorer-at-Law.com.