Court Rules Gran Turismo Protected By 1st Amendment In Including Company Logos For Realism

from the track-speech dept

Ever since video games got to a point of enough realism, how those games depict real-life locations and real life "props" has become an interesting question due to, of course, trademark law. Electronic Arts recently stepped into this question, for entirely unrelated reasons, when it announced it was no longer going to ask for permission to depict realistic and branded weapons in its shooting games. The question has always been more prevalent in the world of sports games, however, with stadiums named for advertising partners and advertising depicted all over the stadiums and equipment within the sport.

Well, we've got another case of a video game producer attempting to rely on First Amendment protections to be able to depict a third party brand within its game, as Gran Turismo made use of Italian flooring company Virag's logo for realistic effect. And, according to the outcome between Virag and Sony in California, the First Amendment wins.

Virag is an Italian flooring manufacturer -- and it also sponsors car races. Its name and logo have appeared on tracks in Sony's realism-obsessed Gran Turismo games, as seen in the image above, and the company sued Sony in California -- but a judge just tossed out most of Virag's claims.

With this order, the First Amendment status of video games as an expressive medium continues to be upheld. "Gran Turismo 5 and Gran Turismo 6 are expressive works that qualify for First Amendment protection," judge Laurel Beeler wrote.
This is good news on several levels. To start, having a judge slap down an obnoxious attempt by a company to sue over the depiction of that company's brand, essentially free advertising, is always welcome. Add to that the further cementing of video games as a medium of expressive art, something that really ought to have been settled in the minds of the masses by now. And, finally, anything that gives game developers a greater sense of freedom to pursue realism with less regard for the insane permission culture that has invaded the arts works for me as well.

As a few commentators have pointed out, Sony likely prevailed because the case was heard in the US, where we have fair use provisions with some actual teeth, compared with the EU where, if anything, the culture of permission is even greater. I would argue that if a region's intellectual property law is such that companies feel emboldened to try to end what is essentially free advertising within art, some revisions to those laws are needed.


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  • identicon
    Anonymous Coward, 9 Sep 2015 @ 3:30pm

    I don't see this ruling surviving an appeal for the simple fact that by including copyrighted logos in their videogames, it implies that the branded company endorses that videogame. If this ruling survives, it's going to have a debilitating effect on someone's copyright.

    In effect, this ruling will allow advertisers to use brand names and logos from other companies in their advertisements, simply by driving past the logo. This is a bad ruling that won't survive an appeal.

    reply to this | link to this | view in chronology ]

    • icon
      Keroberos (profile), 9 Sep 2015 @ 4:07pm

      Re:

      including copyrighted logos in their videogames
      Logos and corporate/product names are covered by trademarks not copyright. This is a textbook case of fair use of the mark(s)/names in question.
      will allow advertisers to use brand names and logos from other companies in their advertisements
      This is actually specifically allowed in US trademark law, as long as the use is descriptive of of the others product.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2015 @ 4:08pm

      Re:

      You're confused.

      It's already legal for advertisers to use the brand names and logos from competitors in their advertising, as long as they do so without confusing consumers or misrepresenting their competitor's products/services.

      You must not watch a lot of TV in the US. There are a bunch of commercials that depict their competitors brands and logos.

      reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 9 Sep 2015 @ 9:48pm

      Re:

      it implies that the branded company endorses that videogame

      Or not.

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 9 Sep 2015 @ 10:15pm

      Re:

      Every single thing you wrote is wrong.

      reply to this | link to this | view in chronology ]

      • identicon
        Michael, 10 Sep 2015 @ 5:15am

        Re: Re:

        To be funny, I was going to select and post something from his comment that was not wrong so I could argue with you.

        I have failed to find anything, so my plan has been foiled.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Sep 2015 @ 12:16pm

      Re:

      "by including copyrighted logos in their videogames, it implies that the branded company endorses that videogame"

      Not really. It depends on how and where the logos are being used. If they are primarily 'background' visuals, which simply add depth of Realism to a scene, then it neither implies sponsorship nor endorsement of the game and would most likely survive court challenges.

      And frankly speaking, the reason why you will often see logos, etc. replaced or blurred out in movies/media is not because of copyright concerns, but rather the Production company is unwilling to give out free advertising.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2015 @ 3:36pm

    Suing is doubly stupid because the logos are there because the company wanted them plastered all over the cars/raceways. That's the entire reason they sponsor raceteams & events in the first place

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2015 @ 3:57pm

      Re:

      No. Wrong. It's a new mode of sponsorship: Censored Sponsor. They'll sponsor a team or event but only the people they approve can actually see the logos. And they don't want the people that make GT to see the logos.

      reply to this | link to this | view in chronology ]

      • icon
        Sheogorath (profile), 9 Sep 2015 @ 4:05pm

        Re: Re:

        I think you meant And they don't want the people who play GT to see the logos. Of course, they have no control over it, given the fact that both devs and gamers will still see the logos if they watch motor sports on TV. :)

        reply to this | link to this | view in chronology ]

  • icon
    Sheogorath (profile), 9 Sep 2015 @ 3:50pm

    Mike Masnick absolutely loves it when companies' rights are struck down. Blah blah blah, shill shill shill...
    You don't think I need a sarc mark for the above, do you?

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 9 Sep 2015 @ 4:40pm

    Is this very much different than...

    Will Graham's Di-Gel habit in Thomas Harris' Red Dragon?

    Not sure if that's to suggest that Thomas Harris endorses Di-Gels.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2015 @ 5:11pm

    If this decision holds, it could send chilling shockwaves through Hollywood. Meaning that movie studios could use this as a signal that they don't have to pay companies for product placement.

    My apologies but I just don't see this decision surviving an appeal. The decision was the wrong decision that this idiot judge could have made. It's one thing if companies are filing ridiculous lawsuits over copyright and trademark rights but this decision is going to have serious ramifications if it's allowed to stand.

    This decision basically stripped the trademarks that companies and businesses have registered in their names and placed them under the protection of the first amendment so that anyone can use those brand names without having to compensate the company for the right to do so.

    Expect not only Virag to appeal but also expect to see 'friend of the court' amicus briefs in favor of Virag. The judge simply didn't consider what other industries might be affected by this decision.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2015 @ 5:27pm

      Re:

      You are confused, Hollywood doesn't pay companies for product placement. It's the other way around.

      Also you don't seem to fully understand the issue. Armchair quarterback the judge after you learn the difference between a trademark and a copyright.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 9 Sep 2015 @ 5:37pm

      Re:

      This decision basically stripped the trademarks that companies and businesses have registered in their names and placed them under the protection of the first amendment so that anyone can use those brand names without having to compensate the company for the right to do so.

      Umm, no, not quite. If someone tries to slap a Pepsi logo on their product, that's still not acceptable, all the ruling is saying is that you can incorporate the logo in something else, like a game or short film or something, and not have to ask permission to do so first, as should be the case. Trademarks are to prevent customer confusion, there's not likely to be much of that regarding random trademarks on in-game ads for a racetrack.

      Expect not only Virag to appeal but also expect to see 'friend of the court' amicus briefs in favor of Virag. The judge simply didn't consider what other industries might be affected by this decision.

      Because it's not the judge's job to consider that sort of thing. So what if it might have an impact on another industry, he was ruling on the case before him, and the facts before him led him to rule a particular way.

      The idea that judges should always have to take into consideration how their rulings might affect other companies/industries is a horrible one, as it would pretty much ensure that no rulings would be made that might negatively affect a company/industry.

      "Can't rule against company A, because that would affect companies B, C, and D, who do similar things, so even though A is in the wrong, I'm going to have to side with them here."

      No, just no. Free speech is more important that the profits of companies, so if this ruling negatively affects them, tough.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2015 @ 6:45pm

      Re:

      "If this decision holds, it could send chilling shockwaves through Hollywood. Meaning that movie studios could use this as a signal that they don't have to pay companies for product placement."

      That's absolutely the best two sentences of satire I've read in a very long time.

      reply to this | link to this | view in chronology ]

    • icon
      Sheogorath (profile), 9 Sep 2015 @ 7:12pm

      Re:

      Meaning that movie studios could use this as a signal that they don't have to pay companies for product placement.
      You're obviously confused. This case is about including trademarks for purposes of veracity, whereas product placement is a form of sponsorship wherein PepsiCo pays a movie studio to have characters drinking nothing but Mountain Dew (for example). Basically, this case sets the precedent that a movie studio or games developer/publisher don't have to clear the appearance of logos if they appear the same way in real life, it says nothing about the right of movie studios to turn down sponsorship fees for product placement, which they've always had.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Sep 2015 @ 7:31pm

        Re: Re:

        You know that's all product placement. There is nothing in a modern big budget movie that's not supposed to be there, from the drink in the actors hand to the smallest logo on a building.

        reply to this | link to this | view in chronology ]

        • icon
          Sheogorath (profile), 9 Sep 2015 @ 8:16pm

          Re: Re: Re:

          My point that it's the movie studios that get paid sponsorship fees for product placement rather than having to pay licencing fees to include the logos still stands, but nice attempt at redirection. I pity the fool...

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 9 Sep 2015 @ 8:41pm

            Re: Re: Re: Re:

            Video games get paid too. Why would you pay a fee to someone if you can get a payment off someone else?
            Actually if you read the decision on this the judge has allowed the case to continue on right of publicity of the owner, so this may very well cost Sony in the end

            Your point seems to be about a distinction between products for placement and for 'veracity', and about a precedent that can't of been set as this wasn't a ruling, just an "ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION TO DISMISS" (caps from the document)

            reply to this | link to this | view in chronology ]

            • icon
              Sheogorath (profile), 10 Sep 2015 @ 5:32am

              Re: Re: Re: Re: Re:

              Actually if you read the decision on this the judge has allowed the case to continue on right of publicity of the owner, so this may very well cost Sony in the end.
              Doubtful. Any sensible judge will rule that Virag is basically enjoying free product placement and thus rule against them.
              [...] "ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION TO DISMISS" (caps from the document).
              A document which isn't linked to from either this article or the Gamasutra one, and which would probably be a pain in the arse to read on a mobile phone (PDF) if it was. Your point?

              reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 9 Sep 2015 @ 10:35pm

      Re:

      "This decision basically stripped the trademarks that companies and businesses have registered in their names and placed them under the protection of the first amendment so that anyone can use those brand names without having to compensate the company for the right to do so."

      It's a bit ironic that you would call the judge an idiot and then demonstrate your complete confusion of copyright and trademarks. These are two different sets of laws for two different purposes, and it's sad how often the two are incorrectly conflated under the guise of "intellectual property". You should learn the difference before making any more dire predictions about the fate of poor old Hollywood.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 10 Sep 2015 @ 4:55am

      Re:

      I don't think so. Brand placement is important to the point companies pay to appear even if it's some random stuff that doesn't impact the movie at all if the brand changes. However we are talking about things that make a difference. If Pepsi has a landmark building that's known all over the world it doesn't make sense to replace it with a "Coke" building because you are recording the landscape and the landscape is well known.

      reply to this | link to this | view in chronology ]

    • identicon
      Michael, 10 Sep 2015 @ 5:21am

      Re:

      If this decision holds, it could send chilling shockwaves through Hollywood. Meaning that movie studios could use this as a signal that they don't have to pay companies for product placement.

      Quite the opposite. Hollywood MUST like this ruling. Had it gone the other way, it could stand that any time a movie studio decided to film something in Times Square, they would be forced to get permission from THOUSANDS of trademark holders. There is probably no urban environment that Hollywood would ever be able to film in again.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2015 @ 5:37pm

    Expect the decision to be appealed. 'Nuff said. The judge's ruling was wrong and it will be appealed.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2015 @ 6:04pm

      Re:

      You don't have to keep posting the same comments to the article. We get that you disagree with the ruling. You already said that twice before.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2015 @ 6:23pm

      Re:

      If you say it enough times maybe it will become true?

      reply to this | link to this | view in chronology ]

    • icon
      G Thompson (profile), 11 Sep 2015 @ 2:10am

      Re:

      Are you of the opinion if you say something over and over again it will actually be taken as gospel or magically become factual?


      LOLOLOLOL

      You're an idiot
      You're an idiot
      You're an idiot

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2015 @ 7:54pm

    A pyrrhic victory thus far .

    From Reuters...
    "At the same time, U.S. Magistrate Judge Laurel Beeler in San Francisco allowed Virag SRL and its lawyer James Kim of Cole Schotz Meisel Forman & Leonard to pursue their claim that Sony violated the personal right of publicity of Virag's owner, Mirco Virag, by depicting the name of the company in the games without permission. The opinion was released on Friday."

    So the first amendment stuff is thrown out, but the case continues on right of publicity.

    reply to this | link to this | view in chronology ]

    • identicon
      Michael, 10 Sep 2015 @ 5:28am

      Re: A pyrrhic victory thus far .

      That is true, but I would expect that Virag will have quite the uphill battle on that case as well. It is going to be pretty difficult to make an argument that, from a publicity standpoint, this is any different than someone filming the logo as part of a movie or documentary. The logo and name are in public places, the company and it's owner are public figures, etc.

      It also might be different if the logo and name were central to the game, but they aren't and are only really there for realism.

      reply to this | link to this | view in chronology ]

  • identicon
    Mark Wing, 9 Sep 2015 @ 8:43pm

    This ruling could have a chilling effect on asshole millionaires, who might not be able to shake as many people down.

    reply to this | link to this | view in chronology ]

  • icon
    bureau13 (profile), 10 Sep 2015 @ 7:21am

    The really dumb thing about all of this is that, had Sony asked Virag if they wanted to pay a small product placement fee to get their logo in the racing game, they very well may have done so, for the same reason they pay a very large fee to display their logos on the actual tracks. This knee-jerk reaction to no one formalizing an agreement is beyond idiotic, and not at all in their best interests as a business.

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 10 Sep 2015 @ 8:05am

    Welcome to another episode of Techdirt Advertising Irony Theatre...

    Seen on this page: http://imgur.com/SKufEnW

    reply to this | link to this | view in chronology ]

    • icon
      Leigh Beadon (profile), 10 Sep 2015 @ 8:36am

      Re: Welcome to another episode of Techdirt Advertising Irony Theatre...

      That one just seems perfectly contextually appropriate, and not ironic at all!

      reply to this | link to this | view in chronology ]

  • icon
    Reverend Dak (profile), 15 Sep 2015 @ 12:44am

    They should be paying us, or subsidizing the costs of these games, for spamming us with their brands. Not the other way around. It's not like a racing game like Gran Turismo is going to be controversial like a game like GTA.

    reply to this | link to this | view in chronology ]


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