Call of Duty's Legal Victory Could Change the Racing Game Landscape

[GTPNewsWire]

This is the discussion thread for a recent post on GTPlanet:

Call of Duty's Legal Victory Could Change the Racing Game Landscape

This article was published by Andrew Evans (@Famine) on April 3rd, 2020 in the Gaming category.

 

[Battle_Egg]

Very interesting.
But I think there's a catch to racing games. COD was using a likeness but there wasn't Hummer or GM badging on the Humvees. It was just a realistic depiction of something everyone already knows is a hummer. If a racing game tried to throw a Porsche GT3 car into a game for instance, they wouldn't be able to say Porsche GT3, it would be, race car A or something bland.

I don't think they would be able to use this to just throw trademarks into the game. Unless everyone buying it didn't care that the game was void of any logos, badging, etc.

 

[matrix_gt1]

This is interesting. Will have to wait and see if this indeed has an impact on how racing games are made. Or any game. Imagine a game based in New York not needing the licensing for any building displayed. I look forward to seeing if any changes are implemented

 

[Famine]

Very interesting.
But I think there's a catch to racing games. COD was using a likeness but there was Hummer or GM badging on the Humvees. It was just a realistic depiction of something everyone already knows is a hummer.

Real military spec Hummers also do not have Hummer or AM badging (at least on the outside).

If a racing game tried to throw a Porsche GT3 car into a game for instance, they wouldn't be able to say Porsche GT3, it would be, race car A or something bland.

I don't think they would be able to use this to just throw trademarks into the game. Unless everyone buying it didn't care that the game was void of any logos, badging, etc.

There's part of the ruling I didn't quote where the judge notes that it wasn't essential for COD to include Hummers at all, but it was a decision made for the pursuit of realism. Now say you have a racing game where the career mode has a GT3 category... well you don't need to include a McLaren 720S at all, but if you make the decision in the pursuit of realism...


The ruling covers three bases: games are art, protected by 1A; pursuit of realism is also art, protected by 1A; trademarks appearing in games meet the Rogers and Polaroid tests for product confusion - even when they sell merchandise based on the trademarks.

I'd say it's more than likely that developers and publishers will be trying their luck and seeing what they can get away with when it comes to putting registered trademarks in their games. Activision vs. AM General may well be a new standard.

 

[FT-1]

In essence, any game which pursues realism as a primary goal could use this ruling as a defense against having to acquire expensive licenses for registered trademarks.

I get the impression this could signal the death of arcade racing games featuring real cars. Plus, where do you draw the line on what counts as realistic?

 

[Roger the Horse]

It's always been very confusing to me that developers have had to licence cars in the first place. As this Call Of Duty case demonstrates, that's not how trademark law usually works. Licencing other aspects, such as brand logos for example, may be a different issue; but since the virtual car in a video game is not in any way the same thing as the real car in the real world, there shouldn't be a trademark conflict for simply having the car in the game.

It is of course worth bearing in mind that this case only applies in the USA so whether it will have a global impact remains to be seen.

 

[Famine]

Imagine a football game too. As a player you would expect to see Real Madrid, Liverpool, Bayern Munich, and all their players (substitute for NFL, NHL, NBA, preferred sport here). In the pursuit of realism, a game could include the teams and players - even though it's not necessarily essential - and as you're selling a video game, not tickets to a football match, there's no product confusion...

 

[Shofast]

Great, EA can try to put Toyota back running from the law in Heat. Evading the police in a video game dosnt effect car sales.

 

[davidt33]

I like this ruling.

 

[Roger the Horse]

I honestly have doubts about how much this will affect the video game landscape. It's entirely possible that a European or Japanese or Australian or Canadian or Mexican or Korean or some other court may rule to the contrary and with video games being as global as they are today that could easily put a major spanner in the works.

So far as cars go I expect this will be more significant for cars which have long since left production, especially if in that time that manufacturer has significantly changed aspects of their branding. I doubt Mazda would be able to stop someone from including a fully badged up Autozam AZ-1 following this.

 

[QTheRacer_31]

Great for modders

 

[iName]

I think this might be stretched just a tad for it to apply to racing games.

This is more a similar situation for logos on track walls for racing games. It’s a background element placed for artistic reasons, and is not the center focus. I also recall PD having the same issue with trackside logos, same result and same reason as this.

I think the licensing might be because the car is the center focus and manufacturers don’t want their product misrepresented to potential customers (on a visual standpoint). I might be wrong on that, and I bet I am since I’m not backing this up with anything but assumption

Again, doubt this’ll affect anything in terms of licensing in racing games, with cars or tracks. All I see it doing it allowing the use of more realistic background objects or landmarks.

 

[Famine]

It’s a background element placed for artistic reasons, and is not the center focus.

Except for all the scenes in which you drive around in - and shoot from - a Humvee.

There's actually no mention of the prominence of the vehicle in the ruling, though AM General did cite what I just said as part of its complaint. I linked the whole ruling in the article so that people can read through it.

 

[PettyWingman]

Hmm... I doubt that the entire landscape will be changed.
In this case, COD had been judged that it doesn't make any influence on selling cars.
But racing games; e.g. Gran Turismo, directly do.
So I guess that those racing games won't be relevant to this judge.

 

[Jump_Ace]

Interesting, well I for one love the outcome.


Jerome

 

[FoRiZon]

Similiar apperance happens in PUBG where it features Dacia 1300 instead even to the point of naming such brand explicitly ingame.

Fortunately, no lawsuit from Dacia and its parent Renault was occur and the game could continue to name such car as "Dacia".

 

[Famine]

COD had been judged that it doesn't make any influence on selling cars.

That's not part of the ruling.

Again, I linked the entire ruling so that everyone can read it.

 

[PettyWingman]

That's not part of the ruling.

Again, I linked the entire ruling so that everyone can read it.

Thanks, read and got it.

By the way, I'm a bit confused by the abbreviation for AM General, which is 'AMG.'

 

[Tornado]

I'll believe it when I see it.



Fair use application of a purpose built government vehicle in a game telling a narrative surrounding said government is different enough from using vehicles in a straight driving game that I wouldn't want to be the first company to say that a car manufacturer can eat it and dump a bunch of licenced vehicles in a game and refer to them as such. I certainly wouldn't want to be the first one to dare a sports league to do something about me defying their ability to grant likeness rights.

 

[PaMu1337]

In case of a CoD game, I can kind of understand where the ruling comes from (though I don't entirely agree with it).
In the case of racing games, however, the developer would be directly profiting from using the design and intellectual property of the car company. This won't change anything for racing games. Even if US courts would rule the same for racing games, there's still other courts around the world.

 

[Veinz]

I like the outcome, sadly I cannot see something like this happening in the racing genre.

 

[Famine]

In case of a CoD game, I can kind of understand where the ruling comes from (though I don't entirely agree with it).
In the case of racing games, however, the developer would be directly profiting from using the design and intellectual property of the car company.

That's not part of the ruling. In fact the ruling even found that COD toys, which included a Humvee, were compliant - and that's literally a physical toy using the design and intellectual property of the car company, sold for profit!

Again, the ruling covers:
*Games are art, protected by 1A
*Pursuit of reality is also art, protected by 1A
*Inclusion of a vehicle trademark in a game, in pursuit of reality, meets the Rogers and Polaroid tests for consumer product confusion

 

[Z Crazy]

No way that holds water for racing games. I'd bet the game makers tout the inclusion of various cars as advertisement anyway, completely negating that argument. Nice try though.

 

[Mad Matt]

Personally, I feel this is a common sense ruling and I hope it is something other jurisdictions rule on in a similar way.

Sadly, I have my doubts and would imagine that it will become the subject of an appealed in the US.

 

[unit-one]

I completely forgot about this until I saw the remastered Humvees. :\

The wheel arches kinda remind of JLTV. But when I first time saw the remastered video I thought that the car had a damaged front from a crash or something.

 

[Roger the Horse]

Since this will inevitably come up, please remember this is trademark law we are talking about, which is far more limited and specific in scope; and not copyright, which is the branch of intellectual property law the general public have primarily become familiar with in recent years.

If you put a prancing horse logo on the cover of your racing game and call it 'The Ferrari Racing Game' without Ferrari's licence you would be violating Ferrari's trademarks. If you just include a Ferrari in your game without ever implying that you are endorsed by or affiliated with Ferrari, you would not be violating their trademarks as it is impossible to drive a video game to the supermarket. However if you weren't very careful about it you could still easily risk crossing over a line and stepping on one of Ferrari's trademarks.

The point where that line lies is something of a grey area.

 

[MIE1992]

Fascinating. I had heard that a potentially notable issue in remaking (or re-releasing) the older Ace Combat games was licensing, which is why Ace Combat 5's digital re-release was purposely limited to those who got special editions of Ace Combat 7.

I also don't recall Ace Combat making up names for American airframes, as I did recall there being some sort of trademark screen that showed all the various airframe makers, including Boeing alongside Dassault, BAE Systems, and others.

Either way, if it the ruling was in ATVI's favor, this could make things very interesting indeed, for both racing games as a whole (including Gran Turismo) and Ace Combat. I even had an idea where Project ACES could remake the older games using fictional airframes, as it'd be set around Ace Combat 3 in the far future, and the idea is that it'd be a in-universe historical re-telling of those games, complete with a Rashomon-esque questioning if the reported history is flawed in some way. It'd almost be a bit like the in-universe equivalent of how you might see how a CoD game uses guns that were only prototypes in that era, or wouldn't even exist for years after that timeframe.

But to get back to the original idea, the functional aspect would be skirting around using real airframes by replacing some with fictional equivalents. The planes with multiple seats could even have the other, non-pilot seats replaced with AI modules, like the Su-30 in Ace Combat 7.

 

[Slapped]

Here's the way I see it.

Putting the likeness of a vehicle into a game where the vehicle is not the central point of the game is probably OK and gets covered by this ruling.

However, due to sim-racing/driving requiring exceptionally accurate models and physics means that a licence is likely going to be required.

Sticking a model of a Ferrari into a game where it's called a, shall we say, a Feretti Turbo, is probably on the right side of this ruling. However devs like Kunos who work closely with the manufacturers to get not only the models right, but also the physics, would still need to license the cars as otherwise they wouldn't be able to get the necessary information to make the cars as realistic as possible. The manufacturers would just tell them to go and spin on it if such info was requested without licence.

So, licencing is still going to be needed for the sim-racing genre, otherwise we all might as well go and play Mario Kart.

 

[Wolfe]

I get the impression this could signal the death of arcade racing games featuring real cars. Plus, where do you draw the line on what counts as realistic?

"If realism is an artistic goal..."

I think Need for Speed is covered under that reasoning, although the likes of Mario Kart's Mercedes-Benz deal may not be. It's not like Call of Duty games are ARMA-style simulators.

 

[evldave333]

Anything that loosens capitalism's' stifling grip on creativity is a good thing. This could allow for certain corners from a track or design elements from various vehicles to be combined in new ways without the looming fear of potential law suits. Unfettered creativity is essential for video-games to thrive. Just think in the history of racing how many vehicles and tracks could come to games now, with all the development budget going into programming instead of being siphoned off by a capitalist entities with no interest in games.