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.

Filed Under: 1st amendment, call of duty, depictions, free speech, historical accuracy, humvee, video games
Companies: activision, am general


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  • identicon
    Anonymous Coward, 6 Jun 2019 @ 7:37pm

    but they're both commercial entities?

    Confused about where First Admendment comes in, given the issue is between two commercial entities, instead of involving the federal government?

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

    • icon
      Arthur Moore (profile), 6 Jun 2019 @ 8:15pm

      Re: but they're both commercial entities?

      Remember that IP laws themselves are a "temporary" monopoly granted by the government. They are, fundamentally, a government authorized restriction of speech.

      We don't normally consider IP laws as an exception to the First Amendment, but there's no other way to look at it. Which means any sort of overly broad claim runs smack dab into the issue of free speech.

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

      • identicon
        Federico, 9 Jun 2019 @ 1:31pm

        Re: IP in the view of the first amendment

        As some other commenter has noted in the past, there's an entire book on the topic, "No Law" by David Lange. Recommended!

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

    • icon
      PaulT (profile), 7 Jun 2019 @ 12:41am

      Re: but they're both commercial entities?

      I don't think commercial factors come into the protection, especially since it's been ruled that corporation are people.

      That would be a dangerous precedent, anyway. Most mainstream entertainment is of a commercial nature, especially collaborative art forms like games and movies. Are you saying that the government should have the right to censor all of it because first amendment protections disappear as soon as it's funded by a company for commercial use?

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

    • icon
      John Mitchell (profile), 7 Jun 2019 @ 7:50am

      Re: but they're both commercial entities?

      The Supreme Court has made clear that even private agreements between parties are subject to the constitutional restraints on state action if courts are called upon to enforce them. See Shelley v. Kraemer, https://scholar.google.com/scholar_case?case=12732018998507979172. That case involved an effort to enforce a private covenant not to sell residential property to a Black purchaser.

      "These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing."

      The bottom line is that, when a trademark holder goes to court to enforce a TM, it is fair game for the defendant to say, "If this Court enforces the TM against my actions in this case, it would infringe upon my First Amendment right to freedom of speech. It is the same as if the government took independent action against me."

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

  • icon
    That One Guy (profile), 6 Jun 2019 @ 8:27pm

    Time for a stupidly easy game of 'spot the motive'

    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.”

    '... but they didn't pay us for using our stuff, which is super-unfair and something the court should make them do!'

    It's a pretty blatant and stupid cash-grab, but sadly under the mindset of 'Everything must be owned, all use must be paid for' that far too many operate under it's not a surprising stupid cash-grab.

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

  • icon
    rorybaust (profile), 6 Jun 2019 @ 8:36pm

    not to mention limiting Humvee's ability to sell Humvee's

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

  • identicon
    Anonymous Coward, 6 Jun 2019 @ 9:23pm

    Well, they could just patch the dialogue to say "Get in the High Mobility Multipurpose Wheeled Vehicle!! *shots fired* JOHNNY NOOOO!!!! He didn't know what to do because it took me too long to say it! CURSE YOU TRADEMARK LAWYERS! *cries*"

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

    • icon
      Toom1275 (profile), 8 Jun 2019 @ 5:36pm

      Re:

      Private Tikki Tikki Tembo-no Sa Rembo-chari Bari Ruchi-pip Peri Pembo got shot! We need a medic here - oh wait nevermind he died while I was still saying his name.

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

  • identicon
    Anonymous Coward, 6 Jun 2019 @ 10:00pm

    Heaven forbid the free advertising that AM General might get out of this.
    Or if AM General thinks they are somehow being tarnished by depictions of war in Call of Duty games, perhaps they should stop participating in real wars too.

    Lawyers gotta lawyer to justify their existence, but this is beyond ridiculous.

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

  • identicon
    Anonymous Coward, 6 Jun 2019 @ 10:02pm

    Hear hear.

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

  • identicon
    Pixelation, 6 Jun 2019 @ 10:04pm

    Yikes

    Scumvee gets a ton of free advertising and demands to be paid for it as well.

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

  • identicon
    Anonymous Coward, 6 Jun 2019 @ 11:21pm

    My question is how can it be trademark infringement? Is somebody really going to mistake a video game rendition of a real vehicle, for the real vehicle?

    Hmmm, I really want to buy a Humvee, I think the best price I have found is the PS4 version at $49.99, much cheaper than the AM General version at $150,000*.

    * Disclaimer: I am pulling that number out of my back side.

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

    • icon
      PaulT (profile), 7 Jun 2019 @ 12:43am

      Re:

      "Is somebody really going to mistake a video game rendition of a real vehicle, for the real vehicle?"

      No, but they could mistake that the Humvee company is officially endorsing the game and/or the events within.

      Don't get me wrong, this is clearly a cash grab, but that's a reason why people have to licence this stuff.

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

      • identicon
        Anonymous Coward, 7 Jun 2019 @ 8:24am

        Re: Re:

        No, but they could mistake that the Humvee company is officially endorsing the game and/or the events within.

        Since when did trademark become about endorsement?

        Isn't trademark's sole purpose of existing is to avoid consumer confusion, so when I go to the store and buy BrandX, I know, without a doubt, that BrandX is the maker of said product, and not same shady scam company. How does BrandX's endorsement or non-endorsement of something completely outside of their primary market have anything to do with consumer confusions such that it should be a trademark issue.

        Did Andy Warhol have to pay Campbell's a licensing fee?

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

      • identicon
        Anonymous Coward, 8 Jun 2019 @ 8:27pm

        Re: Re:

        No, but they could mistake that the Humvee company is officially endorsing the game and/or the events within.

        Even that's a hard fight. Seems like a decent lawyer could make a strong case for nominative fair use.

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

  • identicon
    OGquaker, 7 Jun 2019 @ 12:51am

    That barn's had no horse in years

    Without video games, the US Army would have moved on years ago. Visual media has given AM general decades of sales & therefor the manufacturing tooling has paid for itself many times over. The US Army was dumping thousands of surplus humv's with no mileage in the early 1990's, and shipping hundreds to Mexico to use against Chiapas. Willis' Jeep lasted from 1941 into the Korea 'Police Action', perhaps 12 years. STFU.

    Disclaimer; I built a factory to build all-electric limousines on hmmwv axles in 1995.

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

  • identicon
    Anonymous Coward, 7 Jun 2019 @ 12:56am

    This is simply abusing the system for money.
    They can claim good faith all they want. It’s just obvious.

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

  • identicon
    Anonymous Coward, 7 Jun 2019 @ 5:13am

    Look at all the war films that show b52 bombers, jeeps, american war planes , i doubt that the film companys pay for the right to film every
    tank, truck and plane .
    It would be very difficult to make a realistic film about ww2 or vietnam
    without showing real miltary planes and jeeps .
    And i think 90 per cent of humvess are paid for by the us army and the taxpayer.
    It would be very hard to make a film or tv show in LA without showing
    real cars .
    I think call of duty switched over to using their own gun designs
    as they were getting asked for money to show real guns in the game .
    Their has to be a limit to copyright if film companys are going to
    be able to show real locations on film .
    Many film companys were paid to show products from certain brand on film,
    apple would give free pcs and laptops to tv companys to use in tv shows
    as product placement .

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

    • identicon
      Anonymous Coward, 7 Jun 2019 @ 5:43am

      Re:

      They're doing it backwards. Activision should go the James Bond route and use product placement to pay for their development costs.

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

  • identicon
    Anonymous Coward, 7 Jun 2019 @ 5:20am

    Humvee basically have one customer in america ,the us army ,
    they may sell a few humvees to a few rich customers ,
    theres not many civilian customers who want to drive a jeep that weighs a ton
    and is heavily armoured .
    They don,t need to advertise to the general public.

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

    • icon
      nasch (profile), 7 Jun 2019 @ 9:16am

      Re:

      they may sell a few humvees to a few rich customers ,
      theres not many civilian customers who want to drive a jeep that weighs a ton
      and is heavily armoured .
      They don,t need to advertise to the general public.

      1) AM General sold the Hummer brand to GM, so they have no further interest in selling to the public
      2) GM discontinued Hummer in 2010
      3) Civilian Hummers were never armored, and even the military version was not originally armored

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

    • identicon
      OGquaker, 7 Jun 2019 @ 8:06pm

      Re:

      Actually, the hmmwv civilian derivative had to exceed 10,000 lbs. GVW to qualify as a truck, hanging a ton-O-crap on it, or it could not be sold in America.

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

  • This comment has been flagged by the community. Click here to show it
    icon
    Susan M. Commander (profile), 7 Jun 2019 @ 5:52am

    Socialism Is for Figs T-Shirt

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

  • identicon
    Anonymous Coward, 7 Jun 2019 @ 6:27am

    Not just Humvees

    If Activision loses on this, consider not the "war movie" aspect, but the "any movie" aspect:

    A movie has a scene where someone is standing beside a freeway. Many cars, motorcycles, trucks, bicycles, motor homes, etc pass by. In the world of an Activision loss, the movie maker is potentially on the hook for copyright infringement by the maker of each such vehicle.

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

  • icon
    tom (profile), 7 Jun 2019 @ 7:50am

    If AM General wins this, it will pretty much end any use of accurate depictions of US Military in games, TV, movies and other uses limited by trademark and copyright. Almost every bit of kit a soldier wears is made by one or more private companies. Underwear, socks, boots, uniforms, coveralls, canteens, canteen carriers, packs, holsters, knives, mechanics tools, first aid gear, etc. Many items have multiple suppliers. It could take hundreds of licensing agreements to cover everything worn/used by one Private Smith.

    Don't see how this could "Promote the progress of science and useful arts" the Constitution refers to.

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

  • icon
    John Mitchell (profile), 7 Jun 2019 @ 8:10am

    Jeep

    What's next? Jeep will sue the makers of all those WWII movies that include Jeeps? Ridiculous lawsuit.

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

  • icon
    nasch (profile), 7 Jun 2019 @ 9:20am

    Brands

    Ubisoft avoided the issue with the "Landrock":

    https://i.ytimg.com/vi/Cjyimt0Fwso/maxresdefault.jpg

    Glad Activision is fighting it.

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

  • identicon
    Anonymous Coward, 7 Jun 2019 @ 10:01am

    What happened to product placement?

    Uh ... I'm confused. If I were making a video game that takes place in the modern world, or the future, the only way anything would look like (let alone be named after) a brand is if the brand owner paid me to put it there. It's called product placement and it's a form of advertising.

    I need an off-road vehicle to drive around in the game? Hey Humvee, Jeep, Rover want it to be your vehicle? Great! who pays the most?

    Oh, nobody? Okay. Yo devs, get creative. Don't make it look like any of the real-world vehicles. Make it way cooler.

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

    • icon
      nasch (profile), 7 Jun 2019 @ 11:24am

      Re: What happened to product placement?

      Don't make it look like any of the real-world vehicles.

      That defeats the purpose if you're trying to make a realistic military game.

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

      • identicon
        Anonymous Coward, 7 Jun 2019 @ 1:26pm

        Re: Re: What happened to product placement?

        Just don't dare utter the words historical accuracy because we all know that it's a dog whistle to bigots who get upset whenever supposedly-realistic historical events are updated to reflect modern progressive themes such as inclusion and diversity. Or at least that's what we were all told last year by C.O.D.'s chief competitor before it became clear that revisionist history tends not to go over well with wargame enthusiasts, especially when such revisionism is a core theme in the company's advertising campaign.

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

    • icon
      PaulT (profile), 8 Jun 2019 @ 1:39am

      Re: What happened to product placement?

      " the only way anything would look like (let alone be named after) a brand is if the brand owner paid me to put it there"

      That's your choice. Others would choose to have the work look like the real world without having to beg people to make them do that.

      "Don't make it look like any of the real-world vehicles"

      Yeah, simulations always work best when they don't look anything like reality. /s

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

  • identicon
    Anonymous Coward, 8 Jun 2019 @ 3:32am

    Can't they just change the name to HammZee, then portray them as the unshielded dangerous explodable rust buckets they are?

    All for 100x the price of an actual armored vehicle

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

  • icon
    Tanner Andrews (profile), 11 Jun 2019 @ 12:30am

    You don't get there

    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

    You may be interested in the First Amendment question, but frankly the court is unlikely to get there. Courts generally avoid constitutional questions when there is another path to resolving the case.

    In this case, plaintiff is bringing a trademark claim. A trademark is used to designate or disambiguate the origins of goods and services. They claim protection for their "Humvee" mark.

    The mark is used to designate a particular good from a particular vendor. It is used to accurately identify the origins of the good: the character saying ``get in the Humvee'' intends to refer to the vehicle made by the plaintiff, not to refer to some less desirable knock-off.

    Since you are using the trade mark to refer to the vendor's product, there is no risk of confusion and thus no violation. Trademark does not protect against someone using the mark to refer to the vendor's product, even if the reference is unfavorable.

    Observe, therefore, that I can say this Humvee has a rough ride and gets lousy gas milage because its designers had rocks in their heads!'' I could even saythe Humvee is ugly and its lawyers dress it funny.''

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

    • icon
      Tanner Andrews (profile), 11 Jun 2019 @ 12:34am

      Re: You don't get there

      oops, silly markdown -- that does not reliably show up in preview!

      Observe, therefore, that I can say "this Humvee has a rough ride and gets lousy gas milage because its designers had rocks in their heads!'' I could even say "the Humvee is ugly and its lawyers dress it funny.''

      There, fixed that for me.

      Evidently there is some bug in markdown that misinterprets quotes. Not sure whose idea it was to do that (or to make it not show in preview), but some smart people have now come up with a markup language called HTML which is very widely accepted, The techdirt folks might want to look into it.

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


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