Electronic Arts has claimed First Amendment protection for its depiction of real helicopters in Battlefield 3.
According to legal documents obtained by Kotaku, US helicopter manufacturer Bell Helicopter demanded that three models owned by the company, the AH-1Z Viper, UH-1Y and V-22 Osprey, be removed from Battlefield 3.
As the two companies have failed to reach a private agreement, EA has submitted a document to the federal court of North California. The document states, “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 claims that its use of the helicopters is “protected by the First Amendment and the doctrine of nominative fair use.” It goes on to state, “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.”
A landmark June 2011 ruling that provides videogames with the same First Amendment protections as film and literature strengthens EA’s position.