Trademark & Copyright Of 3D Models of Real World Guns
Jay_NOLA
Posts: 1,145
On the old forum they had some post mentioning trademark and copyright problems of real world 3D military items.
This news article about a WWII bomber model was mentioned in that thread.
http://boingboing.net/2008/03/21/wwii-bomber-trademar.html
Now EA is planning to use 3D models of guns in its games without crediting the companies that make them and even went as far as to sue Bell Helicopter. Bell Helicopter's said EA depiction of the helicopters in "Battlefield" was beyond fair use and amounted to a trademark infringement and because of this EA sued them.
See this article:
http://games.yahoo.com/blogs/plugged-in/video-game-maker-drops-gun-makers-not-guns-204837253.html
So what is all this going to mean for making of 3D gun models an military props. The law is pretty clear on some things, but EA seems to want to not even give credit to the manufacturers of said items from what i could find out online and sue them so they can use any item with out having to deal with copyright issue or even crediting the manufacturer of said item in simply saying that it is an unauthorized model. While claiming that EA's usage is fair an reasonable.
So I'm not wondering what EA's actions will do to the making of real world guns as 3D models. Most of the gun manufactures I understand didn't have a problem as long as proper credit was given, but that might change because of EA's actions.
I'm wondering what is going to be considered fair usage and what isn't because of this.
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Comments
the biggest problem i see is everyone drops everything under the fair usage clause, whether right or wrong. Look up songs uploaded by users at Youtube. most have no legal right to do so, but hide under the fair usage clause each time. I am all for protecting ones IP, but where does the line get drawn?
I do addons for the Flightsim community and Cessna are complete jerks in regards to any 3D model of their aircraft being made for the sim, even worse for Gulfstream. I can see the issue with making a product that competes with the original, but not when it is something for a whole other reason and not even a tangible object. I know other developers that made the mistake of asking Cessna for permission and got slapped with a cease and desist or pay us an ungodly amount or money.
The irony is that geeks playing Battlefield etc actually want to know which guns they're using, so you'd think a credit would actually work hand-in-hand with that. Maybe they're in a panic over the possibility of having to make some sort of royalty payment to the arms manufacturer(s).
Traditionally, there wouldn't really be much of an issue so long as weapons are not being portrayed as unreliable and/or inaccurate to fire. Maybe there's a panic starting about what can be done with 3D printers and what this could mean for the future.
I would imagine that if the item (gun or helicopter) was being used to enhance the game (not just a gun or a helicopter, but this particular model because it's cool and exciting) then the maker of the original would argue that the game is benefiting from the use of soemthing they developed and promoted to the point where it had that cachet, and so they should be compensated for its use; if the game maker doesn't want to pay royalties it should have paid its developers to come up with new items and spent its own money making them cool and recognisable.
I think the main issue here may be the use of the company name or product name, which is actually what is trademarked.
This link may be enlightening:
http://www.lawmart.com/forms/difference.htm
I suppose that it may be argued that a digital 3D object is a violation of a patent. But for me, that would be like trying to argue with Magritte (see attachment) that it is a pipe.
That sounds very reasonable, but as far as I know EA is the earthly embodiment of Satan, so you can't really expect reason to work here :D
Also worth mentioning, "fair use" is very often branded about, and most of the time, it's grossly misused.
For what I remember, fair use in the US covers, roughly, whether it's educational use (and this "educational" means being used in an official school or university or whatever, research, etc, not "for tutorials to put on the net"), use for reviews/news/critical evaluation (not a chance in a game), or use for parody (again, not a chance).
There are also considerations, where the first one is whether it's used for commercial purpuses (resounding YES) instead of nonprofit educational purposes (and notice this is "nonprofit educational", not "nonprofit, and educational", it has to be both). The third is whether there is a portion or a full work used (full work). So under those considerations, EA should not have the right. Although of course if their lawyers are arguing, of course they are going to suggest somehow they're bypassing all of this. However, there are considerations about transformative use, which COULD be the case... and I suspect this is where EA might be trying to drive their point in.
I do happen to agree with Richard, though, in that EA is deriving monetary gain from their use of real world weapons, both for the "cool" factor, and of course by the often ignored fact that then they won't need to have anybody from their team designing cool and workable guns or vehicles to use. If this was a game where these things are peripheric it would be one thing, but apparently they are quite central, so it's very difficult, at least in my head, to argue for EA to be right on this.
A question, to which I do not know the answer: Does United Artists pay Walther a fee every time a Walther PPK is used in a James Bond movie?
One would think the same legal principle would apply in this case, whatever principle it might be.
possibly not every time (companies traditionally pay movie studios for product placement, especially when associated with the hero), but they would have at least received payment for the actual prop guns the actors are holding in the movie scenes
I wonder how (or if) this affects the art produced. For example, I'm rendering an image of a model of a real-world car right now. Will I have to hide the company name and logo in the render? Of course you can still identify the vehicle from it's shape. Can I even show the resulting art to others?
Onr factor that plays an important part when this sort of thing comes to litigation is how central the identity of the item is - if your car is just sitting on a street, or being driven by a character, and the precise model and marque doesn't matter then you are less likely to have problems than if the car is the star of the image and model and marque are central.
Usually making a piece of artwork is not an issue. But EA is not making a piece of artwork, it's producing a commercial item
I would say it's not the same. The Walther is not a prominent feature in a James Bond movie, there are guns, yes, but usually they could be replaced by anything similar without the movie experience being affected. And I don't remember anything other than a passing comment about what James Bond uses (if that)... I think if you stop 50 people and ask them what car James Bond drives and what gun he uses, most people would be able to mention the former but not the latter.
With a game, usually if you choose a weapon, you are told exactly what weapons you are choosing, and based on your choice you will have certain enhancements or changes to your playing experience... playing with an Uzi would give you a different experience than playing with a Colt from the far west era, right? Same applies here. Basically, if EA didn't want to pay royalties, or even request authorisation, they could easily design their own generic weapons for use in-game.... it's not like they're lacking talent to do it. For some reason they decided they want "real" weapons, but they refuse to pay the company for licensing, which is a bit like having your cake and eating it too.
The model doesn't technically matter; I've added parts to it that definitely make it not quite a real car and I'm not in any way trying to indicate what it was, however the base shape is perfectly clear and obviously the original vehicle and it takes a central role in the purpose of the render rather than being backround scenery.
Aston Martin (in most films) and Walther PPK in every movie, but I think these were put in the movies as product placement. They are iconic to the series.
ArtRaiders got slapped by Eidos a while ago, over one of our products, which we had to take off the market despite the fact that the clothing set generated as much (if not more) fanart as the Eidos games and the two movies did. We simply provided the means to generate the art in 3D, but Eidos claimed to hold the rights to the character as a whole, including the clothing. A ridiculous statement, because anyone can put together a tanktop, shorts and a two gun holsterbelt.....
It's the matter on how far the companies owning the rights will go and some will go ridiculously far to protect what they deem as their property.
had some time Yesterday to dig into this a bit:
First you can read read the Judge's ruling on the Converter Claim the Bell Helicopter filled after EA sued them. Lots o info in that PDF.
http://www.courthousenews.com/2012/07/30/EA_Textron_9.pdf
It has as you'll have noticed a lot of info on why the Judge decided to let the claim go ahead to trial and stuff your not seeing in news stories on this.
That EA and Bell had settled over the use of Bell's equipment in prior games i noticed is not mentioned in several older news stories on the law suits ad the news media didn't mention several things about the counter claim which makes Bell look like the bad guy. Most of the older news stories really don't inform much and the public reaction to the story was mostly in favor of EA due to ignorance about the issue by not having read the court's ruling and general ignorance of the law.
Link to an older story. The majority of the comments tend to show mass ignorance of those that replied on it.
http://games.yahoo.com/blogs/plugged-in/ea-sued-helicopter-imagery-battlefield-3-215407944.html
With regards to James Bond many of the cars, guns, etc. are product placement. A few of the gun companies I'm aware of will actually provide the newest version of several weapons just so they can show up in a Bond film.
Surprised they never got rid of PPK in the movies, since they are no longer in use in the British services after a 1974 failed kidnapping attempt of Princess Anne and her husband Mark Philips when they were eturning to Buckingham Palace. Inspector James Beaton, the personal police office assigned, to them PPK jammed when he attempted to fire at the kidnapper. That PPK was withdrawn from Bristish service afterwards because of this.
One day in order to post a pic on face book or use a photo for your cover of your novel, you'll have to credit or may not be allowed to use it if there is an aeroplane in the background. And then you will have to say park bench was made by so and so from a pattern he used from such and such, and it was painted with red wattle paint. the gardens were planted by mr x and he grew the grass using such and such a seed, and not only credit these people but get permission to use their item in the pic at all.
the interesting thing is that when I wrote to EA to ask (since I think they have some sort of sim city comic making proggy) if I could use renders of a city I created as backgrounds for my comic, they said no. I tried to explain about how it would improve the market for their games but they were very abrupt and not willing to discuss it. I don't think they even understood my question or bothered to try and understand what I was asking.
What it all comes down to is not about fairness, but about who can afford the biggest lawyer. I'd say best but that is a matter of opinion... I've always thought that for complete fairness the lawyers should be required to routinely engage in some form of gladiatorial mortal combat, this way at least we can weed out the truly bad lawyers and when we say one is the "best", at least we know to some degree that is true, at least in one aspect.
The National Bar Association has never responded to my repeated suggestions to enact this program... I think that is very rude.
FYI, Bell won that court case that EA Games brought to them. We read the court documents online tonight.