By: Miranda Glisson

            Recently, I’ve developed a growing interest in car racing – particularly open-wheel, sports car, and touring car disciplines. As a result, I entered the world of Forza video games, including Forza Horizon and Forza Motorsport. While I practiced my driving skills in a not-too-fancy simulator playing Forza Motorsport, I wondered about the challenges Forza and other video games must face with licensing trademarked subject matter like cars after the AM General LLC v. Activision Blizzard, Inc. decision. 

IP Licensing in Video Games

Video games represent the pinnacle of interactive intellectual property, often requiring developers and producers to secure numerous licenses for a single game. Video game licensing refers to an agreement between a video game producer and an external company granting the producer permission to use the company’s intellectual property in their game. Game producers may employ licenses to use copyrighted and trademarked works in their games.

            Video game producers and external companies negotiate and agree upon each license.  Each license can have differing stipulations depending on how an external company wants their copyrighted or trademarked logo/work used within the game, ensuring the user’s perception of the external company’s work aligns with that company’s desire in how they are perceived.

Video game developers may want to obtain permission to use a third party’s trademark in their game to bring their creative vision to life. Incorporating trademarks from other companies can enhance realism, enable parody, or support commentary. However, obtaining the permission to use a trademark in a video game varies in difficulty, and the licenses can boast specific terms and conditions regarding use, scope, duration, quality control, and fees.

AM General LLC v. Activision Blizzard, Inc.

Trademark licenses may not be required when video game developers use the trademarked subject matter artistically or expressively. When one’s trademark is used in an artistic or expressive way by another, courts have narrowly interpreted the Lanham Act (the primary federal statute governing trademark law in the United States) to avoid suppressing protected speech under the First Amendment. In AM General LLC v. Activision Blizzard, Inc., AM General brought a trademark infringement claim against Activision Blizzard for using Humvees in their game, Call of Duty, without obtaining permission. The court determined the inclusion of Humvees in the game was intended to enhance realism, deeming their use as an expressive form of creativity. As a result, Activision Blizzard was within its rights to incorporate real-world subjects for artistic purposes and thus did not infringe upon AM General’s trademark.

AM General LLC v. Activision Blizzard, Inc. had significant impacts on video game licensing by establishing that real-world objects that are depicted in video games enhance artistic realism are protected under the First Amendment. As a result, video game developers do not need to obtain a license from trademark holders if the use is to enhance artistic realism. However, it is unclear how far the holding of AM General LLC v. Activision Blizzard, Inc. reaches. A major factor in the AM General LLC v. Activision Blizzard, Inc. decision was that consumer confusion was unlikely between the plaintiff’s Humvees and the defendant’s game, as there was no evidence of significant market overlap or direct competition. Accordingly, it would be expected that if there was market or consumer overlap between one party’s work and the other’s trademark, there would not be protected use of that mark, and therefore, a license would be required.

            I, as a very novice video game player, enjoy video games’ depictions of realism as it enhances immersion. As video games incorporate brands and products into their games to enhance realism, developers are required to navigate when trademark licensing agreements are required or not. Decisions like AM General LLC v. Activision Blizzard, Inc. show that trademarks can be used if they are for artistic or expressive purposes, if there is little likelihood of consumer confusion. However, this boundary is uncertain and likely creates difficulty for video game developers as, ultimately, video games are a mix of art, collaboration, and commerce, creating difficult intellectual property challenges.

#videogames #artisticrealism #trademarks