After licensing talks broke down between Textron - the parent company of Bell Helicopter – and Electronics Arts, the company has decided to take the legal route to get around paying any licensing fees. Publishers are often pretty heavy handed when it comes to depictions of their work – even when the target claims fair use - but when the shoe is on the other foot, EA has a habit of seeking remedies through the court.
EA has asked the federal court for the Northern District of California to rule that it has a First Amendment right to depict real-world military helicopters in its video games without the permission of the aircraft's maker. EA filed the lawsuit on Friday. In the lawsuit (documents obtained by Kotaku, for the record) lawyers for the world’s largest publisher claim that Textron told it to cease using its depiction of three Bell aircraft in Battlefield 3 (the AH-1Z Viper, the UH-1Y, and the V-22 Osprey) and that it feared it would soon face a trademark action from the company.
EA contends that it has the right to depict the aircraft under fair use and First Amendment law. The company also claims that these particular aircraft are not highlighted above any other vehicles in the game. Finally it says that the packaging for the game clearly states that the appearance of weapons and vehicles does not constitute an official endorsement by their maker.
EA hopes to get a judgment similar to the one it got in September of last year when a former NCAA athlete sued the company for using his likeness in an NCAA game. The company prevailed in that fight – mostly because it had a licensing deal with the NCAA in place.
It will be interesting to see if EA will be able to claim Fair Use in this case or will be forced to back to the negotiation table…