Verisimilitude in video games is a relatively new issue, and as seen in the case brought by Lebron James’ tattoo artist against NBA2K, it brings with it a host of new issues about depiction and representations in the medium. Trademark or copyright aren’t much of a concern in 8- or 16-bit formats, but design and computing power is now such that photorealistic depictions of actual items isn’t just possible, it’s expected in modern gaming, although many choose to go the route of generic names and brands within games to avoid any legal complications.
Activision, the makers of the combat-based first-person shooter “Call of Duty” series, chose to hew as closely to reality as possible, and for their troubles they were met with a lawsuit for trademark infringement. AM General, the company responsible for bulding Humvees, felt that the company recreating Humvees in their games was a violation of their trademark, while Activision held that they were within their First Amendment rights to recreate the vehicles in their effort to represent warfare in a realistic fashion.
As reported in Techdirt, Activision has won at least the first battle, as a federal court upheld the studio’s right to depict Humvees under the legal principle permitting the use of trademarked works provided that the depiction of said works is of artistic value. Any case for trademark infringement hinges upon an argument about confusion for consumers, and AM General attempted to make the case that the use of Humvees in the games misled consumers as to their association and involvement with the franchise.
The judge was not swayed, however, as too few consumers were confused to meet the threshold required for such a case. And any such confusion, small as it is, does not override the protected rights of Activision or any other creator to depict vehicles or other trademarked items in an attempt to achieve realism in their art. That is perhaps the most salient point in the ruling; if manufacturers and others gained the ability to restrict the use of their trademarks within art, what effect could that have on not just games but movies and television and any other form that relies upon a real world that undoubtedly runs up against any number of trademarks?
Fortunately, that future has at least been forestalled by the ruling, although it’s not inconceivable that the wave of trademark and copyright protectionism that is sweeping other media might soon find its way to gaming’s door.