California Entertainment Litigation Case Involves Questions of Fair Use

Errors and omissions insurance, otherwise known as E&O, can help shield against claims a person or entity might make against a movie producer, video game company, or other entertainment and arts business. E&O reviews go through what objects are used in movies and video games, for example, to determine if clearance or permission is needed to depict an object due to the following factors:

-Is the object heavily used or prominent?

-Is the object depicted in a negative manner?

-Is using the object going to look like an endorsement of it?

-Does the object have a logo that is visible and trademarked?

-Does the object have another element on it that has separate copyright protection?

In some instances, entertainment companies will blur a logo or obtain necessary clearances to use an object that is critical to the success of a scene. It can be costly, but if it is an essential element, it will be worth the time and fees.

Otherwise, a person or entity that is affected by the use of its object can litigate to recover damages from improper use of its intellectual property. Sometimes, a company will be proactive and flex its power in court ahead of time to get what it wants. Recently, the gaming powerhouse of Electronic Arts did just that. EA’s Battlefield games have life-like helicopters and weapons to make it more of a realistic wargame. Because EA has been sued before by Textron, which makes military helicopters, this time EA sued Textron for declaratory relief so that a judge will rule whether they can use a similar Textron-like helicopter in their video games.

Video game companies have been gaining ground in the courts lately, such as in the U.S. Supreme Court’s decision in Brown v. Entertainment Merchants Assn. that found video game companies do have First Amendment fair use rights. Especially in light of a Battlefield 3 packaging disclaimer that reads “…the appearance of real-world weapons and vehicles doesn’t constitute any official endorsement by their maker,” the preemptive case could be sided in their favor. EA has also been successful in other cases involving likenesses of college basketball stars.

Textron says that EA’s use of helicopters that look like its AH-1Z Viper, UH-1Y transport helicopter, and a V-22 Osprey are trade dress infringement and dilution. EA’s case takes place in the same venue that decided in favor of fair use rights last year, so onlookers are curious to see if the case will bring new decisions or uphold First Amendment rights for the big game publisher.

Anthony Spotora is a Los Angeles entertainment litigation lawyer and Los Angeles trademark attorney. To learn more, visit Spotoralaw.com.

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