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Video Game Maker Drops Licenses with Gun Makers, but not the Guns

Battlefield 3 by Electronic ArtsBattlefield 3 by Electronic Arts

Last week it was reported that Electronic Arts (EA) is ending its licensing agreements with firearms companies, but stated it will continue to use the images and names of real guns in its first-person shooter video games. Using realistic weaponry and brands of actual firearms adds “enhanced authenticity,” says the maker of games like Medal of Honor: Warfighter and Battlefield. But critics say both that it promotes gun brands and links that brand with violence and aggressive behavior. Electronic Arts Some speculate that game makers want to distance themselves from the gun industry during the national debate on violence, gun control, and the right to keep and bear arms. EA said politics and NRA comments critical of game makers had nothing to do with its decision. I don’t doubt that at all. But as usual, it’s not about guns; it’s about control. This time it’s about control of intellectual property rights. Legally speaking, it is critical that a trademark owner control the use of its marks, even if it isn’t getting paid for them, or it may risk losing the ability to enforce its rights in other areas.

EA says it has never paid a licensing fee to a gun manufacturer nor has it ever been paid to use specific gun models or trademarks in its games, even though it had license agreements with multiple gun makers. Now, EA says that depicting actual products and identifying their brands is “fair use” and compares the role-play games to a book telling a story. From a legal perspective, this point of view is typically valid for books and movies, but would not likely fly for a traditional board game or toys, for example. So is a first-person shooter video game more like a movie or a toy? Different U.S. courts have reached different conclusions, so it’s still an open question.

Although many airsoft producers have been sued in the last few years, I have not found a single case where a firearms manufacturer has sued a video game company for using identifiable or branded guns and accessories without a license. There may be some mutual benefit to both companies, while avoiding an official relationship where one could be tainted by bad press against the other. Plausible deniability—in both directions. However, Bell Helicopter, a unit of Textron Inc., and EA are embroiled in litigation over unlicensed use of its military helicopter names and images. EA contends that the use is expressive and entitled to First Amendment protection, thus no license is necessary. Bell asserts the use—in the game, packaging, and marketing materials—infringes its intellectual property rights.

First Amendment and “Fair Use”

Battlefield 3 by Electronic ArtsBattlefield 3 by Electronic Arts These issues really aren’t about a pure First Amendment right of free expression. EA isn’t making a social statement about the weapons or aircraft it depicts or the brands. The weapons and aircraft are not trivial background scenery, incidental to the “story.” This is a commercial entertainment product using the intellectual property of another to make the experience more “authentic” and, therefore, more desirable. More valuable.

EA and Bell tried but were unable to negotiate a license agreement, so EA went forward with Battlefield 3 as planned. Unlike gun makers, whose products (or airsoft facsimiles thereof) may achieve added popularity—and sales—from depiction in the games, Bell has no civilian market for its multimillion-dollar military helicopters. One can presume Bell was seeking to be paid, not just acknowledgement in the game’s credits.

Last year, EA asked the court to dismiss Bell’s claims on First Amendment and fair use grounds. The court denied both and the case is on track for a jury trial next month. Continuing licensing relationships with gun makers, licenses EA contends are unnecessary even if no payment is made, would be an inconsistency likely to be brought to the jury’s attention. Unless the case settles, we may soon have a verdict—and an indication of which way the practice of licensing agreements between gun makers and game makers is trending.

About the Author

Glenn Bellamy is a Partner with more than two and a half decades of intellectual property litigation, patent and trademark prosecution, and U.S. Customs enforcement experience, first in Seattle and now in Cincinnati. He counsels clients on strategic plans for international Intellectual Property protection of everything from firearms and hydraulic machinery to toys and games. Glenn has litigated Intellectual Property cases throughout the country in federal courts and before the International Trade Commission. You can learn more at Glenn’s website, www.Armorer-at-Law.com

The Mission of Cheaper Than Dirt!'s blog, The Shooter's Log, is to provide information—not opinions—to our customers and the shooting community. We want you, our readers, to be able to make informed decisions. The information provided here does not represent the views of Cheaper Than Dirt!

Comments (7)

  1. It all comes down to money. Either EA doesn’t want to pay, or the gun companies are charging more for the licenses. With how expensive the guns themselves were (in the midst of the gun control debate) I can see it being the latter. Either way, its money, nothing more, no matter who says what, especially anyone on these posts as they don’t know jack, they just pretend like they do.

  2. people want a real experience in the gaming world, EA is giving gun manufacturers free advertising- they should be thankful and move on…I play, and enjoy the realistic nature of the game- to blame video games for violence is as wrong as blaming the gun for violence, right and wrong falls on the person who commits violence. Right and wrong should be taught to kids early I blame the bad parenting. Personal responsibility and accountability of actions should be taught early in one’s life- this is a lacking standard across the board to just blame someone else if someone get’s caught in doing something wrong. It’s not all kids today that are irresponsible, a whole lot of parents aren’t responsible enough to have kids either…want a better world raise your kids better- and stop expecting everyone else to fix your problems by blaming them on TV, and video games and guns for the violence. Your kids actions are your problems direct result of bad parenting. let’s face facts, some people suck at being parents. No one wants to hear it or admit it, but it’s the truth.

    ..if you can open a book and find a picture of a gun, you should be able to play an interactive story/game with the same gun – guess what? who cares? Bell helicopter’s are in Jane’s book of aircraft- wonder if they are suing Jane’s also? I bet it didn’t make enough to warrant a lawsuit. Not many people buying books today right? Besides it’s not like they are taking national secrets and dumping them on the internet…since big corporations want the right to be people- and with it all the perks, they can have the same problem as people, internet removes all expectations of privacy for their products. Why protect big business, they don’t protect the individual’s rights and that is what big business wants- government protection to generate more money… so EA makes a profit making games realistic with real weapons systems (scopes and accessories), tanks, planes and helicopters, good for them. Big business makes billions off the government selling ‘real stuff’ for wars…
    The way I see it – these games desensitize people to the actions of being aggressive war fighters -big business should be paying them for getting people interested in fighting the next generations wars and keeping them in business… maybe big businesses like Bell should be paying EA for getting a few generations of kids interested in flying their products in the next future conflicts. I recall the government coming out with America’s Army as a recruiting tool back in 2003 or 2004. EA games advanced a product that the government wanted and is doing a far better job (imagine that!) then the army at making a game for future war fighters…I’m pro-gun, and pro-EA as far as this game goes…you’d all figure that any law requires that a party be damaged before a claim, how are big companies being damaged by using their image in any games? Do they somehow lose sales? are people not buying their products? no? the government buys them- and it encourages people to purchase their firearms playing these games- so explain how they are being damaged? they don’t profit on the use? EA does- I don’t see a crime in that, I see companies being greedy when they should be thanking EA for free advertising… These games are actually beneficial to gun sales- so what? it doesn’t damage their sales or represent them badly to hurt future sales. I hope the jury trial has every one play an hour of battlefield3… then point and laugh at big businesses like Bell for being greedy. if there is no victim there is no crime in this case. I’m not going to respond to comments but I sure am interested in hearing what other people have to say about my post.

  3. I really don’t readily understand the argument, whereas, the conflict lies herein. If EA choses not to use branding that is their choice, although using similar models with distort the reality that is so strives to achieve. I believe that it is counterproductive, I do not believe that this maneuver will actually accomplish anything accept to cover EA from any more legal complications that may or may not arise. It is unfortunate a particular manufacturer would actually attest to poor practice when their product is being represented as accurately as it is.

    If it is such a tender issue than wouldn’t a computer model that is in “likeness” of a particular firearm actually cause more legal problems? At least a model branded with a particular manufacturer would make it specific and not subject to interpretation would have to be later explained by court. I would think if any particular organization would have any problems with this it would be the United States Military, but I’m sure, not positive, that recruitment numbers have escalated since the depiction of “military style” games.

    Furthermore, I am an avid gun owner myself, as well as, a game player of the games in question here, my purchase and understanding of firearms is not determined by this media, my understanding of firearm diversity maybe, but the actual brand isn’t a consideration, it simply states a fact, Firearm A is produced by Manufacturer A. If money isn’t changing hands, that’s a good thing, I would say a basic and working understanding is already in place.

    I believe the real concern here is violence taking place outside of these games that particular groups would associate certain brands to establish blame, that is incredibly unfortunate. Researching a topic called “The Weapons Effect” would shed a great deal of light on this issue and is worth discussion, versus, “naysaying” and “finger pointing”.

    But to say how EA is handling their business is not ours unless employed by EA themselves or an affiliate thereof. If the decision to create a “likeness” is what has been deemed necessary, then let it be so. I would believe it’s a social responsibility to have better understanding of war and associated tools versus media providing a modified or perverted opinion. But seeing as so many youth these days spend an excessive amount of time around this media we would hope that facts, wherever possible, would be represented accordingly and those responsible for making those efforts praised.

  4. I think in this instance where actual brands are obviously displayed that a license agreement should be required, or be liable. These are games, they promote violence whether you agree with it or not. If there was no money involved in the license then why back away from it other than political reasons.

  5. OK, Here we go again….My, personnel feeling is #1- I, Do feel that the makers of the firearm get a royalty.#2- You must be “18” Yrs old to even play the games, & lets face it, Violence is # 1 selling point in the games. Anyone who has been on a battlefield, would say the same thing, however when you get killed, in battle you don’t ever come back to life in a minute, or so. #3- I, Understand why this outfit wants to place distance between The Firearms co. & why the firearms co. is not responding to this:, “free advertisement”, (FOR) “weapons” that you will never own. “I’M HARD CORE PRO-GUN”, However I ,Don’t think any kids, under the age of “18” should be allowed to play in such violence. I , Don’t play the games however my son plays all of them, & he is “18+” Yrs. old. My Daughter is 26 Yrs old & she plays , but not as much as my son. Some kids even @ the age of “18” Should not be able to play, the parent should know when he, or she is able to play, & not until then. I Have herd little kids playing the game & They could not be over the age of 10 Yrs. Old ,& could not even hold a 5.56 x.45 = M-16 weapon let alone a R.P.G., Or throw a hand Grenade. I’m sorry for the kids that live in that “Environment” it is sad, Let Kids be Kids, and take them out to play go to beach, basketball ,baseball ,football, the River , & for me & my kids , Target Shooting with .22 rim fire , Then they really know what a bullet will do , & how much more fun it is , than staying home and playing this type of game , But you cant please everyone, every time but you can make an effort. that is life, Thank You, G.W.O.

  6. It looks to me as if EA wants the best of both worlds, by using all the information without a license fee. At least the firearms makers
    are getting a ton of free publicity.

  7. Well, then, according to the same logic, gun manufacturers should be able to use, say, screenshots from EA games featuring their firearms, in gun-related publications, without EA consent. It is all about fair use, isn’t it?

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