Bethesda and Interplay have settled a long-running dispute over the Fallout IP. Bethesda bought the Fallout franchise from Interplay in 2007, but licensed back to Interplay certain rights to sell pre-existing Fallout games and to develop and operate a Fallout-based MMO. The MMO portion of the licence contained various conditions, including that Interplay secure funding and start full-scale development of the MMO within 2 years, and launch the MMO within 4 years. In 2009, Bethesda launched a lawsuit against Interplay for trade-mark infringement (on the basis that Interplay was not complying with the trade-mark provisions of the 2007 licence in its activities relating to the pre-exising Fallout games) and breach of contract (on the basis that Interplay had not begun developing the MMO). Reports are that the settlement includes the cancellation of the MMO licence and the reversion of all MMO-related rights to Bethesda, the cancellation of any other Fallout-related IP rights granted to Interplay, and a $2 million payment by Bethesda to Interplay. Coverage of the historical dispute here (Gamasutra); coverage of the settlement here (JoyStiq). Bookmarks: Delicious, Digg , Facebook, Google, Reddit, StumbleUpon, Yahoo |
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We posted recently about how EA has brought a pre-emptive lawsuit seeking judicial confirmation that it has a constitutional right to depict real-world helicopters in its games. This lawsuit is another example of the issues involved in depicting real-world brands and objects in video games. We discussed this topic in more detail some time ago: see here. The EA dispute is interesting because apparently the helicopter manufacturer demanded that EA cease depicting its helicopters in the Battlefield 3 game, and the parties could not reach a resolution. EA then filed its pre-emptive lawsuit on freedom of speech and nominative fair use grounds. (Nominative fair use is a US trade-mark principle that says it's OK to refer to a third-party trade-mark in order to identify that party's products, services or business, so long as you do not suggest an endorsement or affiliation.) Presumably the helicopter manufacturer takes the position that its choppers are distinctive, that it has trade-mark rights in them, and that any unauthorized depiction of them infringes these rights. The strength of this position is not clear, and EA's lawsuit, if it proceeds, will shed more light on the legality of depicting real-world objects in video games.
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Court denies Ubisoft's motion for a temporary restraining order and preliminary injunction against OG's "Get Up and Dance" Though it's likely that most self-styled "hard core" gamers (myself included) tend to eschew dance-based video games, their popularity is undeniable, as is the fact that they continue to produce huge profits for video game developers and publishers. Currently leading the charge is Ubisoft and its Just Dance franchise, which launched on the Wii in 2009 and continues to be a big seller with the cross-platform release of Just Dance 3 in October. Unsurprisingly given the success of the genre, a number of competitors have entered the market (most notably, Microsoft/Harmonix's Dance Central which has been hailed by many critics as the best game for the Kinect ).
In a decision delivered on October 26, 2011, Justice Charles R. Breyer of the United States District Court denied Ubisoft's request for a temporary restraining order and preliminary injunction, holding that "Ubisoft has failed to make a clear showing that it is entitled to such extraordinary relief. While its claims are not implausible, it has not demonstrated a clear likelihood of success on the merits, nor a clear showing of irreparable harm. Moreover, the balance of the hardships do not clearly favor Ubisoft, thus even serious questions on the merits are not sufficient to grant injunctive relief."
The full text of the decision can be found here.
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According to a Reuters report, the US International Trade Commission has ruled in favour of Nintendo Co. in a patent infringement claim brought by Motiva LLC. In a notice issued by Judge Robert K. Rogers, Jr. following judgement, the judge found that Nintendo’s Wii does not infringe two Motiva patents and that there was no industry in the U.S. which exploited the patents in question. The decision is subject to review by the six-member commission in Washington, D.C. and a final decision will be made by March, 2012. Motiva claimed that Nintendo's Wii system infringed on its patents, explaining that it holds a patent for a "human movement measurement system" that uses wireless hand-held or body-worn controllers to track a user's position in three-dimensional space. Nintendo General Counsel Rick Flamm said in an email statement, "Nintendo has a long history of developing innovative products while respecting the intellectual property rights of others. Nintendo is confident that, if the full International Trade Commission reviews the decision, it will reach the same outcome." Motiva has not yet made a public comment on the ruling.
Coverage is available here and here and a link to the notice is available here. Bookmarks: Delicious, Digg , Facebook, Google, Reddit, StumbleUpon, Yahoo |
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. What is interesting about this case is that it is one in a string of cases that have invoked the First Amendment to protect the content of video games. A federal court in New Jersey recently ruled that the unlicensed use of a college football player was permissible under the First Amendment (read the decision here and previous coverage here), as was the depiction of a professional player in EA’s Madden NFL series (previously covered here). The Supreme Court of the US also had the opportunity to address the First Amendment in June of 2011 when it ruled that restrictions on selling violent games to minors violate the first amendment (previously covered here and here). The case established that video games have the same protection as any other expressive work, such as books, paintings or movies. What makes this case noteworthy is the potential implication for trademark infringement suits that result from a trademarked product's use in a video game. The mere use or resemblance of a trademarked, or otherwise copyright, element is subject to a rigorous analysis under the First Amendment. There is no automatic protection for these elements, especially where those elements are peripheral, or merely a detail compared to the work as a whole. In this case, EA alleges that the use of the helicopters is protected by the First Amendment because the helicopters are not an essential element or the main focus of the game. The same may not true for elements that are, like EA’s Need for Speed, where the cars featured are the main focus of the game (and EA has licensed the vehicles to appear in that game).
It will be interesting to see how the California federal court will treat EA’s right to creative expression, using trademarked helicopters, and what that will mean for future game developers who would otherwise have to negotiate licensing rights to use trademarked products in their games. Bookmarks: Delicious, Digg , Facebook, Google, Reddit, StumbleUpon, Yahoo |
Datel Design & Development and Microsoft have buried the hatchet, settling their respective anti-trust and patent-infringement lawsuits against each other in relation to the Xbox 360 system. The companies have been battling it out in the courts since 2009. In November 2009, Datel (based in the UK) sued Microsoft after the Seattle-based software giant released an updated Xbox 360 - a version which did not allow for non-Microsoft authorized storage devices and third-party memory cards. Datel, creator of the popular Max Memory cards, accused Microsoft of "predatory conduct", and filed an anti-trust suit in San Francisco, claiming that Microsoft had "deliberately harmed competition", and had attempted to render inoperable the Max Memory card for "no visible purpose other than to have that market entirely to themselves", according to a press release issued by Datel at the time. Microsoft turned around and filed a patent suit against Datel the following year in Seattle federal court, claiming that Datel's Turbofire and WildFire controllers infringed Microsoft's Xbox 360 controller patent (which covered a protocol for peripheral devices used with a wireless gaming console). Datel subsequently stopped importing its TurboFire2 Xbox 360 Wireless version into the US (which had also been the subject of a complaint before the US International Trade Commission), and also redesigned the offending controllers. In August 2011, Microsoft withdrew its suit against Datel - though it still sought compensatory damages for Datel's past infringement. The terms of the settlements are obviously confidential, though a Microsoft spokesperson reportedly stated that the terms were "to the satisfaction of both parties".
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