Preempting an eminent lawsuit, Electronic Arts has issued an action asking for First Amendment protection for its use of real world military vehicles in Battlefield 3.
EA was contacted on December 21st, 2011 by lawyers representing Textron, a US conglomerate that owns the military hardware company Bell Helicopter. The lawyers explained that 3 of the helicopters models used in Battlefield 3 depict Bell-owned ones and demanded compensation.
EA negotiated with them, but - according to the action's documents - "the parties have been unable to resolve their dispute. EA therefore has a reasonable and strong apprehension that it will soon face a trademark and/or trade dress action from Textron."
EA is building its defense on the claim that the use of the AH-1Z Viper, UH-1Y and V-22 Osprey helicopters is, "protected by the First Amendment and the doctrine of nominative fair use," noting that, "the Bell-manufactured helicopters are not highlighted or given greater prominence than any of the other vehicles within the game."
"The Bell-manufactured helicopters depicted in Battlefield 3 are just a few of countless creative visual, audio, plot and programming elements that make up EA's expressive work, a first-person military combat simulation."
In June 2011 the US Supreme Court voted 7-to-2, guaranteeing games the same First Amendment protection as film and literature. Following that, a lawsuit filed by Rutgers University over the use of quarterback Ryan Hart's likeness was dismissed from court after the judge ruled that EA's First Amendment rights outweighed Hart's rights to control his own image.
