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DON’T GET TO THE CHOPPER!: ELECTRONIC ARTS SUES TEXTRON OVER FIRST AMENDMENT RIGHT TO USE BELL HELICOPTERS IN VIDEO GAMES LIKE BATTLEFIELD 3

Textron, Inc. was ranked as the 220th largest company on the Fortune 500 list in 2010. It owns companies like Bell Helicopters and Cessna Aircrafts, while Textron Systems makes cluster bombs.

Electronic Arts (EA) is the #1 publisher of games in the US and Europe, with most of the major sports titles, as well as series like Mass Effect. EA produced Battlefield 3, a realistic, multi-platform, first person shooter released in late October 2011. It was a game designed to go after the Call of Duty market. There were 3 million pre-orders, 5 million copies sold the first week, and 8 million copies sold in the first month of its release. Playing as soldiers fighting in the Middle East in 2014, Battlefield 3 features real-life modern weaponry and equipment, such as Bell Helicopters.

Back in 2006, Textron sued Electronic Arts over the use of the likenesses of Bell Helicopters in earlier installments of the Battlefield series. In essence, it appears that Textron would prefer that their products not be associated with their uses in warfare, so much as in non-military roles. The case was eventually dropped in late 2007, but it looks like it was before the judge could rule on the motion to dismiss, so a settlement sum was probably reached.

http://dockets.justia.com/docket/texas/txndce/4:2006cv00841/162693/

Yet, things were very different when Textron approached EA over Battlefield 3 late last year. In December of 2011, Textron was in negotiations with EA over a potential trademark suit over the helicopters again, but this time EA refused to pay Textron. Why would EA settle a few years ago, but rebuff Textron now? There are two good reasons. First, the Supreme Court’s Brown v. Entertainment Merchants Assn., case in the summer of 2011, which recognized First Amendment protections for video games. Second, EA has been having luck in tangentially related cases over the use of likenesses in video games, such as those by college basketball stars. Thus, EA has good reason to think it would be successful in asserting that the use of the helicopters that are actually used in warfare for a realistic wargame is a First Amendment fair use.

Yet, EA did not wait for Textron to sue them, rather EA sued Textron. Some news sources have reported this story erroneously by saying Textron sued EA this time, but it is the other way around. How could EA sue Textron when it was EA who used the likenesses of Textron’s products? EA sued for “declaratory relief” which means that they are asking the judge to rule on the question of whether they can use the likenesses of Textron products at no cost. Generally, one cannot go to a court for an “advisory opinion” on how the judge would rule on a particular question, but in instances like this where litigation is immanent an exception can be made.

Still, why wouldn’t EA just wait for Textron to sue them? One advantage to being first to file is a better chance at getting the forum that you want. Here, EA filed in the Northern District of California, their home turf. That district is also where another pre-emptive lawsuit was successfully filed: the seed case which became Brown was filed by video game distributors there and the trial court (and appellate court) ruled in their favor. Last time, Textron sued them in the Northern District of Texas, their home turf.

NiC intends to follow this case.

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About Nerds in Court

John G. Nowakowski, Esq. (LLMT), is a graduate of the University of San Diego School of Law, and is licensed to practice law in California and Nevada. Christina R. Evola, Esq. is a recent graduate of the University of San Diego School of Law where her studies focused on intellectual property, antitrust, and media law. She is a lifelong gamer and avid cosplayer. DISCLAIMER: ‘Nerds in Court’ is for entertainment purposes only. Nothing should be construed as legal advice, or any advice for that matter, and no attorney-client relationship is formed by reading these posts. Do not consider information provided here as a substitute for obtaining legal advice from a qualified, licensed attorney in your state.

Discussion

5 thoughts on “DON’T GET TO THE CHOPPER!: ELECTRONIC ARTS SUES TEXTRON OVER FIRST AMENDMENT RIGHT TO USE BELL HELICOPTERS IN VIDEO GAMES LIKE BATTLEFIELD 3

  1. Just what exactly seriously encouraged u to write “DONT GET TO THE
    CHOPPER!: ELECTRONIC ARTS SUES TEXTRON OVER FIRST AMENDMENT RIGHT TO USE BELL HELICOPTERS IN VIDEO GAMES LIKE BATTLEFIELD 3
    Nerds in Court”? I actuallyhonestly appreciated the post!
    Thank you ,Paulette

    Posted by http://tinyurl.com/adfupill04250 | January 15, 2013, 9:31 am
    • “Don’t get to the Chopper!” was a play on an Arnold line from the movie ‘Predator’ where he screams, “Get to da Choppa!” That line amuses us at NiC quite a bit. The fact that no helicopter is in our vicinity does not prevent one of us from blurting it out here and there.

      Posted by Nerds in Court | May 23, 2013, 7:04 am
  2. Hello to all, it’s genuinely a good for me to pay a quick visit this website, it includes helpful Information.

    Posted by Sanford | June 4, 2013, 1:20 pm
  3. Any update on this litigation?

    Posted by Carlo | June 16, 2013, 3:29 am
  4. Please let me know if you’ll be looking for a writer for your blog. You have some really good posts and I feel I would be a good fit. If you ever want to take some of the load off, I’d absolutely love to write some material for your blog in exchange for a
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    Cheers!

    Posted by K53 learners | August 15, 2013, 3:29 pm

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