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.