'Call of Duty' Wins First Amendment Victory Over Use of Humvees (hollywoodreporter.com) 94
An anonymous reader quotes a report from The Hollywood Reporter: Call of Duty maker Activision has prevailed in a closely watched trademark dispute brought by AM General, the government contractor for Humvees. On Tuesday, a New York federal judge responded favorably to Activision's argument that it had a First Amendment right to depict contemporary warfare in its game by featuring Humvees. "If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal," writes U.S. District Court Judge George B. Daniels in granting summary judgment in favor of Activision. The video game publisher fought AM General's claims along with Major League Gaming Corp., a professional esports organization. The dispute was potentially worth tens of millions of dollars, and the discussion attracted intellectual property professors and the Electronic Software Association to weigh in with amicus briefs. You can read the full opinion here.
I always wondered if they licensed firearms (Score:2)
Seems like modern military shooters use a lot of extremely realistic firearms, I always wondered if they licensed those... does anyone know?
It seems like game makers could start including any weapons they liked for free using this same logic, if they were not already...
Re: (Score:2)
I understand the logic of needing to license car designs. Not sure I find the argument compelling, but the design of a sports car is clearly part of what sells the car. Guns on the other hand, I don't see it. Especially when the gun is designed for the government, that sort of seems like the design belongs in the public domain.
Re: (Score:1)
Yes, the Volvo P90 :-)
Re: (Score:1)
Re: (Score:2)
In the case of the US government, sort of. Documents produced by the government directly are not subject to copyright - but documents produced by a third party working under contract to the government are.
That's in the US though, which is an exception - most countries do allow their governments to hold copyright on anything they produce.
Re: (Score:3)
Also, none of which is important in this case, as it's a trademark dispute rather than copyright. Completely different area of law, though a lot of lawyers will specialise in both.
Re: (Score:3)
Re: (Score:2)
That's always considered a derivative work at the very least. Your description is akin to hearing a song and then picking up a guitar and playing the same song.
Re: (Score:2)
Re: (Score:2)
And every painter who has painted the Eiffel tower had to pay Paris France for the rights to do it.
The tower and its image have been in the public domain since 1993, 70 years after Eiffel's death (citation [wikipedia.org]).
Selling little souvenir models of the tower before then would require royalty payments. A painting is more along fair use IF it's in the background. If it's the main subject of the painting, it would have been up to the Eiffel estate to pursue charges prior to 1993.
See the De Minimis rule: https://en.wikipedia.org/wiki/... [wikipedia.org]
Re: I always wondered if they licensed firearms (Score:2)
Free advertising....
Bond, Goldfinger, and the Walther PPK. (Score:5, Interesting)
Free advertising....
This reminds me of the Bond movie Goldfinger.
In this one Bond was armed with a Walther PPK. That model designation is a German acronym for "Police Pistol Small", and it's the standard detective pistol because of its excellent design. Part of that design is the safety system: You can hit the cocked hammer with a sledge hammer and if the trigger isn't back it won't go off.
At one point in the movie Bond is climbing around on roofs and for the plot the bad guys must discover him. The authors did this by having the PPK slide out of his shoulder holster, slide down the roof just past his grabbing fingers, fall off to the concrete, and go off. This is an AMAZINGLY false slander on the weapon.
Walther started a defamation suit. Then they noticed that their sales of PPK (and it's slightly-longer variant the PPKS, (S for "Special" - extended slightly so it didn't count as a "saturday night special" for import into the US)) had skyrocketed.
Seems the Bond film had made the model more visible, and in gun fan circles jokes about the silliness of the gun going off after only falling a couple dozen feet to concrete did what we now call "going viral". So the film's publicity ended up giving their sales a big boost by spreading their excellent reputation rather than trashing it.
So they dropped the suit. (Hard to show a loss of sales from their most effective, if unintentional and voluntary, advertising campaign.)
Re: (Score:2)
... and [the PPK is] the standard detective pistol of most of Europe because ...
Re: (Score:2)
No it's not. In fact the standard service weapon issued to the police differs between every country with very few of them overlapping. The PPK is used as a service weapon (standard or otherwise) in Germany and Switzerland and that's it.
Re: (Score:2)
Not for decades.
Besides, in Germany, the police service weapons differ from state to state.
Re: (Score:2)
Not for decades.
Goldfinger was 1958, so that was more than five decades - half a century - ago.
I used "standard" figuratively, rather than literally.
Re: (Score:2)
Re: (Score:2)
Re: (Score:2)
PPK stands for Polizeipistole Kriminalmodell, or Police Pistol, Detective Model. K does not mean Kurz, German for short.
I stand corrected.
(Actually I had been told that it stood for Kleine (small). But I was apparently misinformed.)
Re: I always wondered if they licensed firearms (Score:3)
AM General does not manufacture civilian vehicles, and military Humvees can not, by law, be sold directly to a non-government buyer. They would have no interest/need of "free advertising" for a product they can't sell on the open market.
Re: (Score:1)
What do you think a Hummer is. Humvees (without their turrets and guns) both military and civilian models are regularly purchased by regular people. Some enthusiasts buy them from military auctions (basically scrapped vehicles) and restore them.
Re: I always wondered if they licensed firearms (Score:2)
both military and civilian models are regularly purchased by regular people
The only new Humvee you're buying is the aluminum-bodied 'C Series' which comes in kit form. Mil-surplus diesel Humvees can't be registered for use on public roads, no matter what the fuck you do to them.
Re: (Score:1)
AM General does not manufacture civilian vehicles, and military Humvees can not, by law, be sold directly to a non-government buyer.
To be clear, the "law" in this case wouldn't be the military saying you can't sell them to the public, but the NHTSA and EPA rules.
Basically, the vehicle isn't safe enough in an accident for sale to the public, and it is too polluting as well. The market isn't seen as large enough to fix those two things with "actual" military HMMWV for civilian sale, thus the relatively luxurious "Hummers" of civilian design that was only informed by the military, with a relatively short lived H1 being the closest, and on
Re: (Score:3, Interesting)
Re: I always wondered if they licensed firearms (Score:2)
Re: (Score:2)
Counterpoint: The government only asked for a product to exist so they could buy it. If they requisition paper clips, an office supply company may already have a trademarked/patented design for a good paper clip that matches the requirements. Just because AMG had to come up with a new design doesn't make it substantially different from paper clips.
Re: (Score:2)
Don't call them AMG. AMG makes fast Mercedes. They are a completely different company.
Re: (Score:1)
The question is what the game is doing. Is it simulation or artistic. The nuances are in this court case and apply to Call of Duty because it's not a wartime simulator, it's an artistic retelling of a story (alternate history) based on real events.
Basically AM General cannot sue you because you wrote in a war story book about Humvee's. This is the same thing. They could potentially still sue you if you create a simulator of a Humvee and make it look like AM General gave you the specs and design to use.
Re: (Score:1)
It seems like game makers could start including any weapons they liked for free using this same logic, if they were not already...
Generalize this out. Think about it. If the judge had decided the other way, you could see things like you can't have, say, a F150 in a TV show because you'd be infringing on their trademark and copyrights(for the aesthetic of the design), even though you aren't in the business of making trucks, so you're not competition for their business at all. You couldn't have an actor take a drink from a can of coke. Etc... Branding is everywhere these days.
Normally it isn't a big deal because, well, most manufac
Sega lost this battle years ago (Score:3)
Re: (Score:2)
Re: (Score:2)
Trademarks (Score:5, Interesting)
It's totally legal to use someone else's trademark, as long as you don't misrepresent it. For example, I can say "you should go to Bing to search, because it's better than Google." That's two uses of a trademark in a single sentence, and it's totally legal.
Re: Trademarks (Score:2)
Cool. So racing games no longer need a license to include accurate makes/models of any automobile.
Re: (Score:2)
Cool. So racing games no longer need a license to include accurate makes/models of any automobile.
They won't need to license the Trademark. They might need to license any design patents :(
Re: (Score:2)
Design patents cover articles of manufacture, not digital depictions of articles of manufacture.
The closest that you could get is that GUI elements can be claimed in design patents. But I have yet to see someone attempt to claim depictions of real world objects (versus GUI abstractions) in such a way. You'd also have to expressly illustrate it being shown on a display device, not just retroactively declare that the drawings cover a two dimensional display of
Re: (Score:2)
Re: (Score:2)
No, there doesn't have to be something. A license is a contractual promise not to sue. There's no requirement that that promise be premised on an ownership right in anything.
A license can be a settlement of convenience just as much as a post-complaint settlement can be a settlement of convenience.
Re: (Score:2)
Cars are an interesting example. The majority of car manufacturers would probably consider the inclusion of their vehicle in a computer game as a free advert, and happily give their blessing.
Prestige car marques are slightly more complicated. Porsche did not feature in the early Gran Turismos, presumably because they were making money from "Need for Speed: Porsche Unleashed". Ferrari have several games featuring their cars.
However, Humvees are unlikely to feature in their own exclusive racing game. Perhaps
Re: Trademarks (Score:2)
Like car makers were "sure, you can use our cars, but don't let them get ugly and don't let them be slow".
Eventually the car makers relented I think because the better racing games people wanted didn't use their cars.
Unlike this case though, the specific cars are a big focus of the game, and don't just happen to be there in that setting.
This feels more like SimCity using real life cars in the
Re: (Score:2)
Perhaps GTA can switch from its weird fictional cars to real ones then. Since the game isn't about cars, driving just happens to be part of the game.
Re: (Score:1)
GTA's car models are also part of the irony thrown back at licensed games and manufacturers.
Re: (Score:2)
Like Grand Theft AUTO, it's harder to make a case the type of car is purely incidental, it's also hard to argue that the verisimilitude is a huge part of GTA.
Re: (Score:2)
Cars are an interesting example. The majority of car manufacturers would probably consider the inclusion of their vehicle in a computer game as a free advert, and happily give their blessing.
To put this in perspective, Stanley Kubrick wanted to incluce a "Whirlpool" logo on some equipment on a spaceship. He had to pay them $50,000 dollars, the equivalent of several houses' cost, to do it.
Later someone realized they could get paid to put stuff in. Actually they knew this already from diamonds decades earlier, but that was not (overtly) a particular company's product.
When Glee started and was a hit, the producers despaired of coming up with the money to rent songs for an ongoing show. But soon
Re: Trademarks (Score:2)
I think the license is more to convince the buyer the game is accurate with regard to the licensed item. They are telling you they worked with the Mfg. and designed the cars as accurately as possible.
Re: (Score:2)
And yet game companies do license the car designs from car companies for their games. I'm not sure what exactly they are licensing.
They are licensing the right not to have to waste time going to court to prove that the asshole has no case, which would put the release of their game so far back it would be irrelevant ("Hey, kids! Try our great new Model-T sim!"). So it's basically extortion.
Re: (Score:2)
Then they're doing it wrong. Movies get paid to include branded cars. Video games should be the same way.
If you're a rar expensive car maker, yes, it might not directly increase sales, but it sure as hell increases cachet, which increases what the rich are willing to pay.
Re: (Score:2)
Then they're doing it wrong. Movies get paid to include branded cars. Video games should be the same way.
If you're a rar expensive car maker, yes, it might not directly increase sales, but it sure as hell increases cachet, which increases what the rich are willing to pay.
Who pays depends on who approaches who.
Car maker wants car positively depicted in the movie? Paid product placement.
Car's trademarked hood ornament is prominently visible in a scene? Producer pay car maker to license the trademark or edits it out.
Re: (Score:2)
Then they're doing it wrong. Movies get paid to include branded cars. Video games should be the same way.
That's fine if the creators are interested in making adverts rather than having any interest in the product itself. The fact that most movies made that way are utter shit might be a warning, however.
Re: (Score:2)
> I'm not sure what exactly they are licensing, but there must be something.
The ability to show the the cars:
* undamaged
* damaged
Basically licensing is a voucher for "We won't sue your ass for misrepresentation of our product(s)."
Now as to whether that would stand up in court you would have to ask a lawyer.
Maybe design files? (Score:1)
And yet game companies do license the car designs from car companies for their games. I'm not sure what exactly they are licensing, but there must be something.
The first thing that came to mind for me is that they might be licensing actual design files for the car. IE in order to feature the car in the game, rather than having to obtain a car and measure it, or at least do some sort of 3D scan of a car, they get actual electronic representations of the car that they can then adapt to the format used by the game. Detailed performance information, such as when the car shifts, etc...
Combine that assistance with a promise to not sue over using the cars's image, and
Re: Trademarks (Score:2)
It depends on the whole context, but I can see how in a racing game where you're playing to simulate cars you dream and think about is different than a war game where the type of vehicle is incidental but helps with immersion.
Like in a racing game the cars are the focus. It seems more akin to having McDonald's on the side of the road in a street racing game, not the real cars themselves.
Re: (Score:1)
It depends, what's the point of the game? The devil is in the details. If you're creating a driving simulator and make it seem that the companies endorsed or gave you details on the cars, then perhaps you still need a license. If it's part of telling a story, then no, you never did.
Re: (Score:1)
For example, I can say "you should go to Bing to search, because it's better than Google." That's two uses of a trademark in a single sentence, and it's totally legal.
I'm afraid that as always, it depends on the situation, and the situation can change even if the speech remains identical. To illustrate: here you gave an example, that's ok. The example was about someone giving a personal opinion, that's probably ok too.
However, at least in my country, as soon you'd announce this on TV, you might get in trouble, since mentioning brand names on TV might bring you in trouble, as it might be seen as advertisement. However (in my country) mentioning several brand names at once
Re: (Score:2)
What would be so different in a pretty realistic game?
Re: (Score:1)
What would be so different in a pretty realistic game?
The lack of a civilian market for their vehicles might be the reason.
The number of HMMWVs sold is strictly up to the DoD and the militaries of allied nations. They live and die by their vehicle remaining a choice by the military, and the military is buying fewer HMMWVs and more MRAPs these days.
No amount of advertising in computer games is going to sell them more vehicles (though theoretically the kids of the generals in charge of acquisitions might have an effect).
So they might as well go after licensing
Re: (Score:2)
If you find yourself hating a group of people, you are the problem
I hate Nazis. Is that a problem?
Re: Trademarks (Score:3)
Re: (Score:2)
This argument is just daft. If it was 1939 and Nazis were murdering your family and driving you from your home you would have good reason to hate them and even commit violence against them.
Honestly it sounds like some kind of flower power we-are-all-brothers hippy nonsense.
Re: (Score:2)
Consider humanity lucky if it never gets into a situation where hating gerries or japs becomes useful again.
"But it was never useful!" In a balls-out existential war, I wouldn't be so sure.
Re: (Score:2)
I would argue that it went too far during WW2 actually. But that wasn't my point, my point was that hatred can be natural and justified if someone is actually persecuting you. The problem arises when it is used to persecute as the Nazis did.
I mean it's obvious, right? Judging things to be bad is the only way we make the world better, tolerance of intolerance doesn't make sense, accepting a beating because to do otherwise is feeling anger and hatred is silly.
Re: (Score:2)
If you hate people, you are part of the problem. I don't hate you.
Re: (Score:2)
Re: (Score:2)
Nevertheless, it is an important emotion.
Not sure what you are saying here.
Re: (Score:1, Interesting)
I hate Nazis. Is that a problem?
Depends on who you think are Nazis and what you do to them because you hate them enough to do something.
For instance: If you think anyone at a rally supporting Trump is a "fascist" and smash several of them in the head with a bicycle lock, it might be enough of a problem to at least get you three years probation - even if you do it on the University of California's
Re: (Score:1)
... Berkeley campus.
Yes, actually it is a problem. (Score:2)
1. Because how are you any different then? Their hate and resulting actions is why we have a problem with Nazis. And now it is why we have a problem with you too.
2. You're showing Nazi that hate is completely allright, apparently. And it's only if you can convincingly call your victims monsters, that matters. (Well, they convinced the Germans about the Jews and Gypsies etc back then.)
Or it seems to only be relevant that your side is the dominant one right now. (They had that down too, before they lost.)
But
P.S.: I've met actual (neo-)Nazis. (Score:1)
People who used to go out on weekends, to get drunk and beat up foreigners and suspected Jews. Here in Germany.
People who listened to Nazi songs with horrifying lyrics in their cars all day like it's nothing.
As a semi-foreigner. (So literally somebody whose dad had taken away one of their "aryan" girls. And had a good job while they worked night shifts in nasty steel works. [A job I highly respect though.])
And you know what?
They were the nicest people! I literally had to tell one of them to be less nice as
AMC does sell toys and games. That's one argument (Score:5, Informative)
I believe AMC's main arguments are:
AMC does sell Humvee branded games and toys, through it's licensed partners.
The game company prominently featured Humvees with their logo added in advertisements and at promotional events. This creates an association between the brands in the minds of some consumers. (Likelihood of confusion). The consumer survey revealed that 20% of respondents did in fact think the Humvee brand had endorsed the game.
The judge said the first point isn't strong enough because the Humvee-branded toys and games aren't their primary business. That argument makes some sense. On the other hand, phone chargers aren't Apple's PRIMARY business, but you can't put Apple's trademark on a charger you make. The Kindle isn't Amazon's *primary* business, but you better not sell a tablet prominently Amazon's trademark on the packaging and advertisements.
Not that I necessarily disagree with the ruling, but AMCâ(TM)s arguments do make some sense - it's not a totally stupid lawsuit, IMHO.
Re: (Score:3)
Maybe you can put an Apple logo on your own charger. Not in a way that makes it appear to be an Apple branded charger, but in a way that suggests it is compatible with Apple products.
The Kindle example is similar, although stronger because Amazon does sell a lot of eBooks via the Kindle platform and consumers might think that any device with that logo supports it, and also because there is no real reason to put "kindle" on any other ebook reader.
Re: (Score:3)
> Maybe you can put an Apple logo on your own charger. Not in a way that makes it appear to be an Apple branded charger, but in a way that suggests it is compatible with Apple products.
You're talking about nomative use.
Yes, of there isn't another reasonable way to identify the other company's product, you can use a trademark in the way that is least likely to suggest that the trademark owner makes or endorses the product. If there isn't another reasonable way to communicate something you're saying about
Re: (Score:3)
There's two kinds of trademark confusion, one is the right to sell a completely different product under the same name. The other is to create a derivative product featuring the trademarked product. Nobody's going to confuse a toy car Hummer with a real Hummer, but it's a pretty clear cut trademark violation. Generally if you have a trademark, you also have the right to create any merchandise related to it. But failing that, it's also about how you're depicting it - like if you prominently use it in a neo-Na
Re: (Score:2)
"But this is why you'd very often will see "totally not Hummer"-Hummers in a game. People are so afraid to do it that when they actually do it seems like you had permission, even if you don't need one."
The reason is that even if what you're doing is legal, getting sued is still costly.
Re: (Score:2)
The other is to create a derivative product featuring the trademarked product. Nobody's going to confuse a toy car Hummer with a real Hummer, but it's a pretty clear cut trademark violation.
I don't think this is right....I've never heard of "derivative trademark protection." It's not a question of whether people will think the toy car is a real Hummer, the question is whether people will get confused into thinking the toy car is made by Hummer.
A Trademark is basically a sign that says, "I am me."
Re: (Score:3)
I think it's the right decision, but... (Score:3)
how hard is it to come to some sort of agreement?
Hot Wheels Humvee [ssl-images-amazon.com]
I wonder how much the licensing fees for that were.
I find it strange because a company like Mattel must have to license all sorts of cars, but at the same time if you were in the car business wouldn't you want Hot Wheels to make a version of your car? And wouldn't you want your cars to be in a video game?
If Mattel can do it, why can't Call of Duty?
Is this just a shakedown? I really wonder how those deals are made. Yeah, somebody needs to get paid.
Is the intersection of the Venn Diagram of people who buy Hot Wheels (or play video games) and those who actually buy cars just too small?
There's a 2010 Ford Shelby GT500 Super Snake sitting on my desk in front of me. It cost me about a dollar. I have no idea how many of them Mattel made. I wonder how much they had to pay Ford. Hopefully not much - the car is 10 years old. But I've also got a '61 Impala and that thing is 59 years old. I wonder how much they pay to reproduce that. I've got a few Teslas as well. Does Elon Musk collect as much money per car as Ford or Chevy?
Maybe it's actually more expensive to license older cars because Chevy isn't trying to sell '61 Impalas anymore. I have no idea, but I'm curious.
Those legal agreements are probably interesting. What if Ford doesn't like the Hot Wheels version of their car? Would they rescind their licensing agreement? And since Matchbox (also owned by Mattel) has to make such deals as well is it all pretty much standardized by now?
Re: (Score:2)
Manufacturers might want their cars in a video game, but not if the car looks bad. If your cars are the 'starter' model that performs like someone oiled a brick and tied it to a hamster, that's potentially going to make the brand look bad.
Could still be worked (Score:1)
I think it's doubtful that ALL of a company's cars would be the starter model.
I mean, take Ford. You could have the Fiesta being the starting model, and work your way up to the Mustang, which would be a mid-top line of the car before you start shifting to cars from companies that produce nothing but sports cars.
Re: (Score:1)
I wonder how much the licensing fees for that were.
The licencing cost two things, a reasonable amount of money, and also an unreasonable compromise of artistic vision.
For anyone above "at home hobbyist" the cash fee isn't really the problem.
Being contractually obligated to never feature in a bad light, any product from the contractor, as well as any character who is in the US military or government, as well as any actions they take to imply the military or government is not obviously and decidedly the "good guys"
If Mattel can do it, why can't Call of Duty?
Mattel sells the toy, nothing but a depiction
Re: (Score:2)
The fact it says desert division on a green painted truck is too realistic for me already.
Its FREE advertising you dumb asses (Score:3)
Utterly insane that a company would "demand" that they be paid for licensing which has a 0% chance of happening versus a 100% chance of free advertising.
The game Grand Theft Auto bypassed this issue by making cars that looked similar to their real life counterparts but gave them fake names since parody is protected speech.
Re: (Score:2)
The game Grand Theft Auto bypassed this issue by making cars that looked similar to their real life counterparts but gave them fake names since parody is protected speech.
Right! But, making things about the real world is protected speech also.
people, AM legally needed to do this (Score:3, Interesting)