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EA's Battefield Court Battle: 1st Amend. Right to Depict Helicopter

By Cynthia Hsu, Esq. on January 19, 2012 6:02 AM

Game maker EA's Battlefield is now a court -- instead of a virtual warzone. The company has filed for declaratory relief. It wants a California court to rule that their depiction of military helicopters in their popular war game Battlefield is protected by the First Amendment.

EA says that it "has a reasonable and strong apprehension" that Textron will soon file a trademark action. Textron manufactures real-life military helicopters.

Perhaps EA's fear is grounded in reality. Textron has sued in the past. In December 2006, EA faced a suit from Textron over trademark infringement. The case eventually settled for an undisclosed amount, according to The Hollywood Reporter.

After the settlement, EA soldiered on. The Battlefield franchise expanded, and EA released Battlefield 3 last year. The game sold more than 8 million copies in just a few months.

Good news for EA, but bad news for their legal department. The game featured Textron-manufactured helicopters, including the Bell AH-1Z Viper, Bell UH-1Y Venom, and V-22 Osprey.

EA attorneys likely balked, thinking about all the different legal actions that could be taken against them. Textron does seem rather litigious, given their track record.

Perhaps that's why they chose to preempt the military manufacturer. In so doing, EA was able to file the claim in a jurisdiction of their choice as The Hollywood Reporter points out.

What does EA claim? The game company argues that their depiction of the helicopters is fair use. And that they included a disclaimer on game packages. The disclaimers explained that use of images did not mean the manufacturers endorsed the game.

Will EA's Battlefield win in court? That remains to be seen.

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