Federal Court Affirms Activision's First Amendment Rights In Using Humvees in 'Call Of Duty' Game

from the humdinger dept

Almost exactly a year ago, we first wrote about a trademark lawsuit brought by AM General LLC, the company that makes Humvee vehicles, and Activision. At issue is the inclusion of historically accurate Humvee vehicles in the publisher's Call of Duty games. AM General decried those depictions as trademark infringement, leading Activision to say its use was protected by the First Amendment, given that the entire goal here was to accurately depict warfare in an artistic fashion. Shortly after, the ESA chimed in with an amicus brief siding with Activision. Given the implications for the gaming industry should AM General win the suit, this was no surprise.

Well, fortunately for creative expression in gaming, the court has ruled and has sided with Activision.

In his ruling this week, though, District Judge George B. Daniels dismissed AM General's claim. That decision hinged in part on a 1989 precedent that established that artistic works could make reference to outside trademarks as long as the usage was relevant to the work and did not "explicitly mislead as to the source of the content or work."

The court then went through an eight-prong "Polaroid" test (named after a precedential 1961 case) to determine whether Activision's use of Humvees amounted to a legally relevant "explicit misleading" that would trump First Amendment protections. As part of that argument, AM General submitted a survey it conducted showing 16 percent of consumers "were confused as to AM General's association with Call of Duty." As Judge Daniels notes, "less than 20 percent confusion regarding two companies' 'association'... is at most some confusion" and does not amount to the "particularly compelling" confusion required by legal precedent.

The court actually continued on in its analysis as to why AM General's claims were nonsense. It's a fairly thorough debunking by the court. Ultimately, however, the court dove into the impact that ruling otherwise would have on the First Amendment rights for artistic expression in mediums where realism is part of the art.

Daniels writes that "if realism is an artistic goal, then the presence in Modern Warfare games of vehicles employed by actual militaries undoubtedly furthers that goal." And even if that commitment to realism causes a modicum of brand confusion in this case, it's not enough to override the First Amendment protections that video games have enjoyed since a 2011 Supreme Court ruling.

In other words, the tiny bit of maybe, potentially confusion that AM General ginned up in its filing doesn't remotely undue the protections artists and content creators enjoy for free and open expression. You know, the type of freedoms that the US Military has helped our country secure... often times using Humvees!

It's good to see a court side with free expression over corporate protectionism every once in a while.

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Filed Under: 1st amendment, humvee, trademark, video games
Companies: activision, am general


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  • identicon
    Crafty Coyote, 12 Jun 2020 @ 8:07pm

    It's nice to see the courts finally understand that this is "free advertising."

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

    • icon
      Bergman (profile), 13 Jun 2020 @ 10:34am

      Re:

      This. Companies pay big bucks for product placement in media, so why was AM General so unhappy with their product being placed for free?

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

      • icon
        lucidrenegade (profile), 13 Jun 2020 @ 4:27pm

        Re: Re:

        Well, who's going to go out and buy a Hummer because they saw one in CoD? Not much of a market for them outside of militaries, and I don't think they sell the civilian models anymore. Most likely it was a money grab, trying to force Activision to license the brand.

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

  • identicon
    Cho Seung-Hui, 12 Jun 2020 @ 8:12pm

    Is like removing the Ak-47 from russian culture

    Just guessing what the hell AM General was thinking about.

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

  • identicon
    Anonymous Coward, 12 Jun 2020 @ 10:05pm

    I can see it already: in GTA 10 there'll be a chance to run over a gaggle of half-witted non-profit corporate lawyers who're chasing ambulances down the street to sue them over the red cross logo. They'll all look fat, dumb, and enebriated.

    GM's inhouse counsel will sue because their likenesses were used without permission.

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

    • identicon
      Anonymous Coward, 13 Jun 2020 @ 5:46am

      Re:

      non-profit corporate lawyers"non-profit corporate lawyers"

      Activision is non-profit?

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

      • icon
        Bergman (profile), 13 Jun 2020 @ 10:35am

        Re: Re:

        No. Grind your reading skill a bit, then go back and read his comment again.

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

      • icon
        bhull242 (profile), 13 Jun 2020 @ 3:37pm

        Re: Re:

        Actually, I believe that what’s being claimed is that Activision would depict GM’s in-house counsel as non-profit corporate lawyers in GTA10 (which doesn’t make much sense either, but it’s very different from saying that Activision or its lawyers are nonprofit).

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

        • identicon
          Anonymous Coward, 14 Jun 2020 @ 9:13am

          Re: Re: Re:

          Yes, the question is - what does non profit have to do with this story?
          Or maybe the comment was simply taking a swing at non profit lawyers, but why? I thought the lawyers everyone hated were the corporate and divorce types.

          Anyway ... non profit and lawyer in the same sentence looks weird.

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

  • icon
    Bloof (profile), 12 Jun 2020 @ 11:58pm

    The Humvee only exists because of the endless public money peed away on the military, the design should be public property.

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

  • identicon
    Anonymous Coward, 13 Jun 2020 @ 1:08am

    The public pays billions for military weapons vechicles airplanes weapons in the land of the free,
    If would be terrible if artists could not depict war realistically without asking permission to show a jeep or an airplane one reason we go to war is to defend free speech and artistic expression
    Every ww2 film shows real planes and jeeps and weapons and tanks.
    In a time when big corporations are constantly filing dmca notices over videos they do not own
    it, s important to show that there's a limit on
    Corporate control vs artistic free speech,
    Imagine trying to make a film about new York without showing skyscrapers or cars or trucks,
    Will every small indie filmmaker need to pay Ford or
    Chrysler every time someone drives a car in a film?
    Hopefully not . Video games are not part of our culture, they can tell complex story's as well as a good film with characters and story arcs which reflect on issues in real life

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

  • icon
    Norahc (profile), 13 Jun 2020 @ 5:04am

    Wait...a federal judge actually sided with the Constitution? Quick, somebody quarantine him before he infects other judges! Judges aren't supposed to do their duty, they're supposed to do what they're told by IP maximalists.

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

  • identicon
    Anonymous Coward, 13 Jun 2020 @ 6:00am

    So... Humvees in movies? Other vehicles? Other military hardware? Having these things is a trademark violation? Not getting your argument here, AM.

    As part of that argument, AM General submitted a survey it conducted showing 16 percent of consumers "were confused as to AM General's association with Call of Duty."

    Probably the mere fact that you asked them about AM General (which is not exactly a household brand name anymore) and a possible association with COD is what actually confused them. I'd be curious to see the text of this survey as well.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 13 Jun 2020 @ 7:59am

    HumVee and My Testimony on Capital Hill

    Thank you, Techdirt, for so many new subscribers at BonginoReport.com. You guys are great and we really appreciate your attention and downloads. It's great, really, to find so many new friends where I never expected to.

    So today, let me tell you about HumVees and Video Games. When I was with the Secret Service, we had a LOT of Humvees, especially when I went as the lead of the Advance Team for Potus 44. Lots of 'em, really. We had all the games, the shoot Antifa in the head game, the Stomp on Them with Horses game, and my personal favorite, Run Over AntiFa with a HumVee ESporting game. Wow, great stuff, I enjoyed it, everybody in the Secret Service enjoyed it, it was really a great way to let off steam.

    But enough about that, I mean HumVees. Now I want to talk about something serious, something that will affect EVERY American. The battle is coming to you. In your house. In your toilet. Right UP YOUR ASS. That's the Leftie battle.

    Trust me, I know a lot about these clowns. First they want you to bow, then they want you to bend over, and then WHAMMO, right up your ass with a big load. I know. I've seen it. Repeatedly, ferociously, and seemingly without end. It's coming to YOU NEXT if you BOW.

    DON'T FUCKING BOW unless you want a big AntiFa DICK UP YOUR ASS. I'm TELLING YA! You hear it here first!

    And now I'd like to take a minute for our Sponsor, Omaha Steaks. Great cuts of meat,my mouth waters just talking about it. Well, actually, my hot wife Paula is dancing naked in front of me, and that's why mouth is watering. She is touching herself and licking her fingers and putting them well.... You healthy guys know what I'm talking about! Omaha Steaks! Best cuts of meat in the business!

    Oh, wait, is this the site with a buncha gay pasty white boys sucking each other off? Sorry, maybe this is the wrong post. Good lucky, you fucking ladyboys and transexual perverts. Bend Right Over! BLM is PERFECT for you! You're going to be VERY HAPPY!

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

    • identicon
      Anonymous Coward, 13 Jun 2020 @ 8:45am

      Re: HumVee and My Testimony on Capital Hill

      I did not find the sarcasm tag.
      /s

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

      • identicon
        Anonymous Coward, 13 Jun 2020 @ 9:07am

        Re: Re: HumVee and My Testimony on Capital Hill

        There is no sarcasm tag because he's seriously. Seriously fucked in the head, anyway. There is no end to these alt-right conspiracies and war/fear mongering. If it weren't for the handful of high-profile republicans being reasonable throughout all of this I'd think that every last Republican was a nut job. Sad.

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

        • identicon
          Anonymous Coward, 13 Jun 2020 @ 11:48am

          Re: Re: Re: HumVee and My Testimony on Capital Hill

          They are not doing much about it.

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

        • identicon
          Anonymous Coward, 13 Jun 2020 @ 7:08pm

          Re: Re: Re: HumVee and My Testimony on Capital Hill

          He does seem to speak from a lot of experience when it comes to having something up his rectum, mind you.

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

      • icon
        Dark Helmet (profile), 15 Jun 2020 @ 5:48am

        Re: Re: HumVee and My Testimony on Capital Hill

        I for one somehow appreciate the sponsorships at the end of these parody rants. They make me smile for some reason.

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

    • icon
      bhull242 (profile), 13 Jun 2020 @ 3:39pm

      Re: HumVee and My Testimony on Capital Hill

      Despite claiming otherwise, nothing you said had anything to do with video games. And that’s probably the least dumb thing about your comment.

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

  • icon
    Killercool (profile), 13 Jun 2020 @ 11:21am

    I guess they'll just double down.

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

    • icon
      Killercool (profile), 13 Jun 2020 @ 11:48am

      Re: I guess they'll just double down.

      Well. Crap.
      Anyways.

      I can see where they are coming from, but it's their own damned fault. It's only due to massive efforts on the side of manufacturers (of all types, not just cars) that there is any confusion about whether these particular vehicles are representative of the manufacturer's intent/opinion.

      It stemmed from the invention of product placements and such, but only because they have fought back when "truth in advertising" campaigns tried to make product placements be disclosed (FTC says it's unnecessary). So the (cultivated and encouraged) belief in the general public is: if you can see a logo, it's a product placement, and that means someone paid to have it there.

      If not for their efforts to muddy the waters, there wouldn't be public confusion about media needing permission to have a logo showing (they don't). There wouldn't be nonsense like Mythbusters putting stickers over Diet Coke and Mentos labels, then saying "because lawyers." Because those things were legally purchased, and that should be the end of it.

      And now, because of their long efforts to reinforce the belief that somebody has to get paid for everything (twice, sometimes!), a stupid lawsuit like this exists. And they thankfully failed, but only because not enough people were confused.

      So I expect to see their efforts to confuse the public to mount ever higher, because all the money just isn't enough.

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

  • identicon
    Anonymous Coward, 13 Jun 2020 @ 3:19pm

    Maybe this means we'll finally get a re-release of the Ace Combat 4-5-0 trilogy. Probably not, but a guy can dream.

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


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