'Call of Duty' Maker Claims First Amendment Right to Depict Contemporary Warfare

Call of Duty Black Ops - H 2012

Call of Duty Black Ops - H 2012

What do The Avengers, Jurassic Park and The Walking Dead have in common with the blockbuster video game franchise Call of Duty? The answer is they all have featured utility vehicles known as Humvees. Now, the company that produces Humvees is getting aggressive in policing its trademarks and trade dress, and Call of Duty maker Activision is firing back in a lawsuit that could be worth tens of millions of dollars.

"This case is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare," opens a summary judgment motion filed on Friday by Activision. "AM General LLC, a government contractor that manufactured military 'HMMWV' (or 'Humvee') vehicles for the U.S. military, seeks to use trademark law to control the mere depiction of those vehicles in Defendants’ fictional Call of Duty video games. The use of purported trademark rights to restrict the content of expressive works is dangerous under any circumstance. But the claims in this case are particularly egregious because they involve a U.S. military vehicle paid for by American taxpayers and deployed in every significant military conflict for the past three decades."

Activision is joined by Major League Gaming Corp., a professional e-sports organization.

According to the defendants in this trademark suit, Humvees have "cultural and historical significance" and to allow AM General to control circulation of its vehicles in entertainment is tantamount to giving AM General "a stranglehold on virtually any expressive depiction of 21st Century U.S. military history."

AM General, of course, disagrees with the proposition that it can't protect its intellectual property from unauthorized use — especially when Activision has licensed other material for its multibillion-dollar game franchise and when in the games at issue, characters call out to one another to “get in the Humvee.”

In its own summary judgment memorandum, AM General asks a New York federal judge to dispose of Activision's affirmative defense of laches, meaning a prejudicial delay in asserting a claim. Although the defendants point to how Humvees have become "common in fictional movies and television shows" — The Hurt Locker, 24Sicario: Day of the Soldado, etc. — AM's attorneys have spent months collecting discovery from Activision and assert the trademark misappropriation was not secret inside the video game's headquarters.

"A defendant who engages in willful infringement may not invoke laches," states AM's brief (read here). "[T]he evidence is undisputed that Activision acted willfully. The evidence comes from Activision’s own documents, its executives’ deposition testimony, and its own conduct. The evidence proves that Activision used the HUMVEE® Trade Dress knowing that it had no right to do so, knowing that it was unlawful to do so, yet intending to reap a substantial benefit from its widespread, unauthorized use."

Much of what was said in depositions by Activision's executives is currently under seal. While some fodder is public (e.g. an Activision securities filing noting the "risk" that "highly realistic" material may be subject to intellectual property claims, there's a great deal of mystery surrounding redacted information. For example, Activision's marketing executives made plans to have actual Humvees at launch events for Call of Duty only to have the U.S. military intercede. The details, though, aren't yet public.

Activision asserts that depictions of Humvees are artistically relevant and not explicitly misleading.

"Activision made clear to the public that Activision, and not AMG, was the source of the games and never once even suggested that AMG sponsored, endorsed, or approved of them," continues its summary judgment motion. "These basic facts dispose of all of AMG’s claims, under both state and federal law."

As for depicting contemporary warfare, AM General points out that "although many military aircraft and vehicles appear in those of the Call of Duty games that are set in current and near-future times, the HUMVEE® vehicle is the only military vehicle that appears in every one of them. In fact, so valuable is the HUMVEE® vehicle to the Call of Duty franchise that Activision’s president admitted that..."

The rest of this sentence awaits a judge's determination on what should remain sealed.