Preemptive Strike: EA Using The Freedom Of Expression To Block Potential Trademark Infringement Suit

Kotaku is reporting that Electronic Arts has filed a lawsuit asking the US federal court to hold that it has a constitutional right to depict helicopters based on real-life models in its video games.

EA's Battlefield 3, a multiplayer first person shooter game that allows players to step into the shoes of various modern military characters, includes depictions of real-life helicopter models manufactured by Bell Helicopter, a subsidiary of Textron Inc. After talks between EA and Textron about licensing the helicopters broke down, EA brought a lawsuit to preempt a trademark infringement claim that Textron might have for the use of its helicopters in Battlefield 3.

EA argues that in the games, there are countless elements that combine visual, audio, plot and programming, of which the helicopters are a minute detail. The work, as a whole, is a combination of each of these elements and not of the elements individually.