It has unexpectedly turned into Videogame Law week here at the Technology & Marketing Law blog. This is my third videogame IP blog post this week. See my prior posts on tattoo copyrights and signature moves. All three rulings are decisive defense wins, a sign of how bogus videogame litigation has flooded the courts.
The court describes its legal standard:
The but-for discussion is good, but read that first quoted sentence again. And now another time. What the what? The court seems to create a First Amendment test that balances between artistic relevance and consumer confusion. Even if the court gets to the right result in this case, this balancing test (if followed by other courts) will become a hotbed of misunderstanding and bad advocacy. The court starts applying its test by describing the artistic relevancy of Humvees to Call of Duty:
Sticking to the Rogers v. Grimaldi factors, the court then says the Humvee use wasn’t explicitly misleading. However, to determine this, the court effectuates its balancing test by measuring consumer confusion. Thus, the court runs through the standard multi-factor likelihood of consumer confusion test. This makes zero sense because it essentially makes the Rogers v. Grimaldi test superfluous. If everything boils down to consumer confusion, what work did the Rogers v. Grimaldi test do? Instead of gesturing towards Rogers v. Grimaldi, the court could have just said that it would do the standard multi-factor test, but skew the factors towards the defense to reflect First Amendment consideration. That’s effectively what the court did anyways.
This multi-factor analysis doesn’t provide much evidence that Call of Duty tried to explicitly mislead, especially in light of the First Amendment values: “If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal….realism can have artistic merit in itself.” The commercial vending of Call of Duty doesn’t change the outcome:
While the court got to the right place, the court’s legal standard isn’t a good one. Let’s hope this is a one-off. Implications Of course Call of Duty can depict Humvees in its videogame. How is that even a question? The fact this lawsuit isn’t laughed out of court indicates the overall scope creep of IP law (especially trademark law) This is exacerbated by some videogame exceptionalism, where IP owners are more litigious over depictions in videogames than they would be over the equivalent depiction in, say, a movie. Thus, like the other two videogame cases I blogged this week, this case is really about whether IP law can reduce the verisimilitude of videogames. Fortunately, the troika of this week’s cases shows that IP law will thwart those efforts. Unfortunately, IP law isn’t clear enough to prevent the bogus claims from being filed in the first place; there are countless other efforts to control videogame “reality” percolating through the courts right now. Perhaps the troika of cases will send a strong signal to these plaintiffs to invest their energies elsewhere. More likely, IP owners will keep hammering on IP law until they eventually succeed in creating a doctrinal hook that gives them more control over videogames. Case citation: AM General LLC v. Activision Blizzard, Inc., 1:17-cv-08644-GBD-JLC (S.D.N.Y. March 31, 2020) The post Humvee Can’t Stop Depictions of Its Vehicles in the ‘Call of Duty’ Videogame–AM General v. Activision Blizzard appeared first on Technology & Marketing Law Blog. Humvee Can’t Stop Depictions of Its Vehicles in the ‘Call of Duty’ Videogame–AM General v. Activision Blizzard published first on https://immigrationlawyerfirm.weebly.com/ via Tumblr Humvee Can’t Stop Depictions of Its Vehicles in the ‘Call of Duty’ Videogame–AM General v. Activision Blizzard
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