Game developers will benefit from court ruling on trademarks in artistic works

In a move that will likely benefit game developers, the U.S. Court of Appeals for the Ninth Circuit explicitly held that First Amendment protection extends to use of third-party trademarks in the commercial promotion of an artistic work. Although promotional activities fall outside the title or body of the artistic work, the court held in Twentieth Century Fox Television v. Empire Distribution that “it only takes a minor logical extension” to hold that First Amendment protection extends to the advertisement of those protected works. Whether developers use a third party’s trademark in the game’s depiction of the real world or as part of the game itself, developers can find protection under the First Amendment to commercially promote their game while displaying the third-party trademarks.

This case reaffirms the Ninth Circuit’s recent trend of recognizing the evolution toward greater First Amendment protection for expressive works. This shift has been particularly beneficial for game developers where courts in the Ninth Circuit have found First Amendment protection for games that use third party trademarks, such as in Grand Theft Auto’s depiction of the real Los Angeles strip club “Play Pen,” Gran Turismo 5 and Gran Turismo 6’s use of the VIRAG trademark in its realistic version of the Monza track, and Call of Duty: Ghosts’ use of a military supply company’s Angry Monkey patch. Now, in Empire, the court has further extended this First Amendment protection to include the commercial promotion of the artistic work using a third party’s trademark. This holding may be especially beneficial for the gaming industry’s trend of making games look more realistic than ever by including in-game marketing and authentic advertisements, such as NBA 2K’s plan to fill the virtual arenas and player’s jerseys with real third party logos and advertisements.