Author: Joseph Gutmann, Staff Editor, Cardozo Arts & Entertainment Law Journal
Electronic Arts (“EA”) has had some legal issues lately. They’ve beaten former NFL running back Jim Brown and former Rutgers quarterback Ryan Hart in lawsuits over the use of the players’ likenesses in EA’s Madden and NCAA Football video games. They also lost a similar case against quarterback Sam Keller in the District Court of California. Appeals for the Hart and Keller cases are currently pending before the Third and Ninth Circuits respectively. Those players all claimed that they had a right to their own likeness and reputation under the Right of Publicity. But the right to one’s own likeness is one thing. Can that right extend to the likeness of one’s property and brand as well? Now, Electronic Arts is taking a preemptive strike against lawsuits making that very allegation. But if courts take the path that EA is seeking in their decisions they will be allowing First Amendment protections to go much too far.
In the California case of Electronic Arts v. Textron Inc., the video game company sought a declaratory judgment in it this matter regarding its unlicensed use of Bell helicopters’ “Viper,” “Venom,” and “Osprey” military helicopters in its recently released Battlefield 3 video game. These helicopters, officially known as the UH-1Y, AH-1Z, and V-22 respectively, are both plainly visible and available for interactivity when players take on specific flight and combat missions. EA argues, among other things, that it is entitled to First Amendment protection for this use. Bell helicopters struck back by filing a case in the Northern District of Texas alleging trademark infringement against the game maker. Bell states that EA took what was not its own and by profiting off of Bell’s products it will “reap what it has not sown.”
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The views expressed here are exclusively of the author and do not represent agreement or endorsement by the Cardozo Arts & Entertainment Law Journal, Benjamin N. Cardozo School of Law, or Yeshiva University.