“We’re telling a story and we have a point of view,” said Frank Gibeau, then EA’s president of labels, in a 2013 interview with Reuters. “A book doesn’t pay for saying the word Colt.”
Legal experts repeated similar comparisons in conversations with me: Imagine if a book had to license references to Porsche or the Beatles or the Statue of Liberty. Imagine if TV shows had to license every onscreen iPhone or can of Coke. Companies have the right to protect their trademarks, but when courts granted games First Amendment protections, they gained new legal standing. As long as they didn’t mislead consumers into thinking that the manufacturers sponsored the game, they were free to fully represent their fictional worlds and stories as they imagined them.
Since 2013, most producers of first-person-shooter games have followed EA’s lead in eschewing licensing deals. Last week, The Atlantic reached out to the companies behind the biggest shooting games in the industry: Activision, EA, Take-Two Interactive, Rebellion, Bethesda Game Studios, PUBG Corporation, Epic Games, and Avalanche Studios. EA, Rebellion (the maker of the Battlezone series), and Take-Two Interactive (which owns Rockstar Games, the maker of the Grand Theft Auto series) confirmed that none of the weapons in their games was under a licensing deal. The others didn’t respond to requests for comment.
Since the 2011 ruling, trademark cases against video-game companies have mostly been about vehicles, such as helicopters and brand name Humvees. Two legal experts told me that they were unaware of any case in which a gun manufacturer filed suit against a gaming company since EA’s 2013 position, even if trademarked weapons were used.
“When it comes to balancing trademark and First Amendment, your use is probably okay unless [it] had no artistic relevance or [it] was deliberately misleading,” says Steve Chang, a trademark expert and adjunct professor at Georgetown Law.
Guns are often relevant to the settings of many games and, indeed, key to their stories. As Chang notes, this artistic relevance creates freedom. These days, unlicensed, recognizable portrayals of guns in games look, from the outside, the same as they did in the days of marketing deals: The guns look real and shoot well. To players, there’s almost no difference.
Ending licensing deals with gunmakers is less substantive than it appears, argues Ross Dannenberg, a lawyer and the author of The American Bar Association’s Legal Guide to Video Game Development. Licensing agreements protect game companies from being sued for trademark infringement—a threat that the 2011 change to their status effectively neutralized. Legally speaking, depicting a gun in a game is no different than depicting a spatula. But gaming companies want to create the idea that guns are legally distinct.
