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.

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Companies: activision, am general, am general llc, esa

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Comments on “ESA Steps In With Amicus Brief In Support Of Activision Versus Humvee”

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21 Comments
Ack Tee Vee Shun says:

HOO! Masnick calls pirate games "CULTURE"!

If game developers can’t design games without PIRATING vehicles, they should make their own! Games are not and WILL NEVER be culture, sez I! Because that would make Masnick mad if games AREN’T culture. Which they are NOT. Not like $100 MILLION MOVIES. Unless you download one, THEN I WILL SHOOT ALL OF YOU PIRATES, NEXT TO THE LAWYERS.

You pirates make me hoot. HOOT! HOOT HOOT HOOT!

Anonymous Coward says:

If Am general win this case ,it will effect any game set in modern times, game devs may opt to just show generic vehicles rather than real cars or trucks , or military jeeps .
Games are now 3d with hd graphics ,it would be a shame if games could not feature real cars or trucks as it would reduce the sense of realism
which is part of the art of telling a story set in real locations .
Most tv shows and films show real locations and cars in the background ,
i don,t think they have to pay anyone to show someone driving a car or a jeep .This case is an attack on fair use and artistic expression by a company
which gets most of its income from the american taxpayer ,
ie 90 per cent of its income comes from the us army.

amoshias (profile) says:

I'm not sure I see the difference...

between including humvees in a racing game and Ferraris in a racing game. Or including specific players in a sports game.

If I had my druthers, none of this stuff would be protectable. But that’s not the world we live in – we live in a world where game publishers DO need to pay licensing fees to use player likenesses or famous cars or whatever. I’m not sure I see a cognizable legal difference between the use of a specific car in Forza and a specific piece of military hardware in Call of Duty.

Again, don’t get me wrong – I’ll be thrilled if Activision wins, because then I think the ruling will apply equally to many other forms of licensing within video games. (probably not humans though.) I just don’t think it will, based on the law as it currently stands.

nasch (profile) says:

Re: I'm not sure I see the difference...

But that’s not the world we live in – we live in a world where game publishers DO need to pay licensing fees to use player likenesses or famous cars or whatever.

Player likenesses, yes, cars no. They might choose to pay a fee to ensure they don’t get sued, but there is no law requiring it. Hopefully Activision will win this, and game studios will refuse to pay any licensing fees for any products in the future.

With that said, car companies pay movie studios to get their products into movies; why does AM General think it should be the other way around for video games?

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