EA invokes first amendment for Battlefield 3

Electronic Arts has filed a preemptive lawsuit against aircraft manufacturer Textron, hoping to invoke First Amendment laws and justify the use of real-life helicopters in Battlefield 3.
Three helicopters appear in the game -- the AH-1Z Viper, UH-1Y, and V-22 Osprey -- none of which were licensed by Textron's subsidiary Bell. EA was previously involved in talks with Textron to reach a resolution over the use of the US helicopters, but those talks broke down. EA feels it shouldn't have to seek a license to use the likenesses of the vehicles, citing fair use.
Electronic Arts hopes to exploit last year's official ruling that videogames were protected by free speech laws. It has succeeded in the past, getting away with using college football players likenesses without permission. EA asserts that the appearance of the vehicles do not constitute an endorsement by the maker, and that the helicopters are given no greater prominence than any other in-game vehicle, appearing simply for realism's sake.

I'd hate to see the loss of the Viper, especially since I've just unlocked the guided missile perk which took me an absolute age to get but I think other than some subtle design changes in a patch I don't think there's much panic that the choppers will be yanked from the game. I remember when JVC had started to develop the first of their PS2 catalogue with a follow up to Wingover, a military flight sim. The game featured aircraft such as the Boeing 747 and from countless other manufacturers including Lockheed Martin, two years of development down the line the Japanese publisher stopped all development because it hadn't acquired the licenses to use the aircraft and feared a lawsuit. That was back in 1999.

What's interesting is that not all game developers and publishers acquire licenses for things likes weapons and vehicles and in most cases try to find a workaround by changing the design enough that legally a patent lawsuit couldn't touch.Other industries have been affected such as the Airsoft and paintball industry which has felt the lawcourts breathing down their necks especially in the US where patents and trademarks are agressively protected. As late as June 2009 H&K (Heckler & Koch, German weapon manufacturer famous for the SAS Favourite the MP5 took B&T Paintball Designs and Tippmann Sports two of several Airsoft and Paintball distributors to court for copyright infringment on weapon designs.Magpul, another manufacturer also filed a lawsuit against an Airsoft company using its Masada assault rifle design.

In the videogame industry larger more established dev teams benefit from licensing and legal departments to iron out any possible infringment but it remains one of those problematic areas which could probably do with a lot more guidance and accessible information to help entertainment companies and creative professionals stay within the guidelines. How closely EA works with the military isn't known but these are issues that Activision has managed to avoid primarily because its covered all the neccessary issues with regards to depicting real world designs in its Call of Duty franchise.
Until someone can actively represent developers and entertainment companies and guide them through the licensing and legal processes of using military designs this won't be the last time we hear this sort of news.