Publisher of video game Call of Duty wins lawsuit confirming its First Amendment right to depict Humvees

In November 2017, the manufacturer of Humvee vehicles filed a lawsuit in federal court against Activision, the holder of the Call of Duty video game franchise, alleging that the games’ realistic depictions of the military vehicle violated a trademark. A district judge in New York ruled that Activision had a First Amendment right to  portray Humvees accurately because doing so enhanced the authenticity of the warfare depicted in the game.

Key Players

AM General is the government contractor that produces the High Mobility Multipurpose Wheeled Vehicle, a military truck colloquially known as the Humvee, that has been used in combat for more than 30 years in Panama, Somalia, Afghanistan, and elsewhere. AM General was the primary plaintiff in the suit, which was filed Nov. 7, 2017, in U.S. District Court in Manhattan. 

Activision is a video game publisher that owns “Call of Duty,” a series of first-person shooter video games first released in 2003. Many versions of Call of Duty include depictions of Humvees, and some require players to engage with and use the vehicles.

Further Details

On Nov. 7, 2017, just a day after Call of Duty: Modern Warfare Remastered was released, AM General brought a lawsuit against Activision (as well as Major League Gaming, a professional e-sports organization), arguing that its inclusion of the distinctive elements of Humvees illegally derived profits from the company’s intellectual property. AM General argued that the financial success of the Call of Duty franchise — which, as of 2015, included more than 250 million units sold and $15 billion in revenue, Business Wire reports — relied on customers’ erroneous impression that AM General had either licensed or helped create the games.

Activision denied this claim and counterargued that it was exercising its First Amendment rights by accurately depicting military equipment in a video game whose objective was to emulate reality. In a summary judgment motion filed in May 2019, Activision asserted that AM General’s lawsuit is “nothing less than a direct attack on the First Amendment right to … realistically depict contemporary warfare,” and that the attempt to limit such realistic depictions is dangerous. Moreover, although Humvees appear in about 10 minutes out of 35 hours of gameplay, Activision argued that their inclusion was artistically relevant, rendering unnecessary the need to obtain a license to portray them . 

Outcome

Federal judge rules Humvees are artistic and essential to gameplay, allowing other game developers to depict trademarked equipment freely

On March 31, 2020, U.S. District Court Judge George B. Daniels ruled that because the Humvees increase the games’ sense of realism, their depiction by Activision has artistic significance and is therefore essential to the franchise as a whole. Moreover, Daniels found fault with AM General’s claim that Activision’s use of Humvees is misleading. Rather, he noted that the purpose of the Humvees differs for each party; AM General sells the vehicle to the military, while Activision sells a video game (which includes representations of Humvees) to consumers.

Many major video game producers have hesitated to include trademarked equipment for fear of a lawsuit such as this one, according to The Verge. However, after Activision’s triumph in court, other companies have been freed to pursue more realistic depictions of existing (trademarked) equipment, with confidence that the First Amendment protects them. For example, developers behind racing games may now eschew expensive licenses to acquire the right to depict specific cars.