[LEGAL] Using models of unlicensed real cars in games (without logos)?

I can identify many extremely popular indie mobile racing games that use very realistic unlicensed 3d models (with logos removed).

https://play.google.com/store/apps/details?id=com.CarXTech.CarXDriftRacingFull&hl=en_US
https://play.google.com/store/apps/details?id=com.tiramisu.driftmax2&hl=en_US
https://play.google.com/store/apps/details?id=com.combineinc.streetracing.driftthreeD&hl=en_US
https://play.google.com/store/apps/details?id=com.aim.racing&hl=en_US
https://play.google.com/store/apps/details?id=com.skgames.trafficracer&hl=en_US

I can't find much legal precedent for this.

What is the legality of this practice? Is this something I can do for my own Unity game?

 

It's questionably legal at best and the reason these games aren't being taken down is because they're too small for companies to notice. They're flying under the radar. Just design lookalikes.

 

GTA thrives on lookalikes.

 

https://play.google.com/store/apps/details?id=com.aim.racing&hl=en_US
I see this game has over 100 million downloads. Has this been ignored or have companies just let this slide?

 

You don't need a license to mention Oreo cookies in a book. You shouldn't need a license to put a BMW grille in a video game. But it's not up to you. Anyone can sue or send C&D letters for practically anything. If BMW thinks that their grille design is why you're racking up big bucks, or it's really really really a close likeness, they'll get in touch (and not likely in a kind way). If that grille is obviously a fleeting homage, or it's in a low-selling game, they have bigger fish to fry.

 

After doing some research, the closest thing I could find to legal precedent was this:
http://www.tbennettlaw.com/createprotect/2016/2/2/real-trademarks-in-virtual-game-worlds-virag
and this (scroll to "H: Video Games"):
http://www.tbennettlaw.com/createpr...print-video-games-and-other-media?rq=fair use

According to the article, there's apparently a "Roger's test" which is a general test that identifies whether the use of trade dress/trademarks is fair use or not. It's based on whether or not the reference has artistic value and if the association with the entity is manipulative or not.

I am not a lawyer so I have no idea and this information might be incorrect.

 

Activision Blizzard was sued by AM General for unlicensed use of vehicles that looked like Humvees in COD games late last year. I don't have a pacer account so can't read the latest filings, but the last activity on the case was last month and it is not yet resolved. Will be interesting to see how this turns out, as this case is likely to create the legal precedent you're looking for.

https://www.pacermonitor.com/public/case/22934168/AM_General_LLC_v_Activision_Blizzard,_Inc_et_al
https://www.open-public-records.com/court/new_york-19532461.htm

Precedent is only binding in the specific district that the court that makes the ruling oversees, but other courts often look to rulings in other districts for non-binding guidance.

 

Alarming, I have these in my game

https://assetstore.unity.com/packag...vee-military-vehicle-with-6-camouflages-65447

 

Thank you for your interest. This court case is certainly pertinent to my situation. Something critical to consider is that the vehicles featured in COD games were explicitly labeled as "HUMVEE". This makes the use of the trademarked material much more blatant than simply using vehicles with a similar trade dress/design. It would be interesting to see how much this influences the outcome.

 

Video games have an odd industry standard.

For example:
In movies, Ford pays the studio for having their car in a film
In games, studios pay Ford a massive amount of money to put their car in a game.

I get that it's all about supply and demand, but how does this make sense?

 

Everyone is telling you not to do it because it's illegal. I think you should contact a lawyer and make real enquiries. Price of things does not need to make sense to you. It is the property of a company and they are allowed to charge whatever they wish, depending on what they feel will add value for them.

You can't decide for them.

 

It was never about supply and demand. It's always been about what they benefit from and the way their intellectual property is portrayed. It wouldn't surprise me though if some of the problem is that the games industry is very young compared to the movie industry.

 

I have absolutely no intention of doing anything illegal. I would just like to be more educated on the subject. I don't understand how the following indie games could use unlicensed vehicles but yet still get away with over 100 million downloads. Are they simply licensed vehicles with logos omitted? If they are unlicensed, the car manufacturers surely would have noticed?

 

The thing that is debatable is how the law differentiates brand usage in video games and film. Movie makers don't have to ask for permission for brand usage because their film depicts real life. Suddenly video games have become much more realistic. Is there actually so much of a difference? EA brings up a good point in the EA vs Textron lawsuit. Video games have only recently received the first amendment. This seems to be a grey area.

 

I would ask for a license, it's actually not impossible. The problem is I thoroughly simulate deformation, this is a BIG no no for the auto industry:

"But we would never appear in a Burnout game, a game where destruction is the point of a game."
https://www.fastcompany.com/1669990...up-in-video-games-and-does-it-help-the-brands

 

Now you're learning. And no, movies can't just show brands however they like. The context and what is the focus of the scene is everything. Even then, they do run every single glimpse of a brand past real lawyers. They have to.

Also you seem to think the only law is American law. You'll find the rest of the world probably won't agree and will still have your ass handed to you. America won't protect you from that. For example you sell on a store to Europeans, and upset an auto manufacturer. The manufacturer may not be able to act directly from where you live but can certainly press charges from another state or agreeable location.

My final attempt to make you see sanity: please get a lawyer. Any lawyer will be able to advise on this matter, even a free consultation.

 

Yeah, looks like the games and movies are actually closer to being on the same page than I thought. But I still don't understand how those indie games with (30000000+) downloads use unlicensed cars freely (especially given your point of many different countries).

 

programmers should be programmers and lawyers should be lawyers

lol what am i doing

 

Indeed, the process is called clearance, and occasionally the get denied.

 

It is a big market, it takes time to search. Just because the lawyers haven't done anything yet, it doesn't mean they won't.

 

This. At Disney, as you can imagine, people are constantly infringing. Stuff gets reported all the time and usually the legal department had it on a list. But it would impossible to address every case in a timely manner, if ever. There aren’t enough hours or legal staff. So they get prioritized in some fashion. So, exactly that, because someone else hasn’t had action taken doesn’t mean you won’t be acted on. It’s not a risk worth taking.

 

I think the automobile business are more leaned to sue if their cars are not just static props but can be driven. They dont want their cars to be shown in a negative light, for example if it loses a race against a competitive manufacturer.

That said firearm manufacturers dont care in the same extent, and their firearms could have less damage or accuracy than another manufacturer of firearms. Our game have even been show cased on the facebook page of one of the largest scope manufactures in the world (Next biggest after Swedish Aimpoint ).

 

It is inconsistent across all sectors. There are those who welcome the exposure, while others see it as an opportunity to make money. Some arms manufacturers are the most aggressive defenders of their IP being represented in games, unless you pay a hefty fee.

Using existing IP adds value to the game, so I think it is fair the IP owner looks for a fee. If it doesn't add value to your game, why are you including it? Make your own, create you own IP.

 

https://patentlyo.com/patent/2016/06/digital-trademark-infringement.html
An opinion of Lucas S. Osborn, Associate Professor of Law at Campbell University School of Law:
"Use of the models in expressive works like games and other video productions will not likely lead to an actionable trademark claim because the First Amendment protections provided to expressive works would likely trump any trademark claim. See, e.g., Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989); E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008)."

 

Okay, my advice is:
The safest thing to do, is to make your own car designs, or make some
cars, partially based on the designs of real life cars, but change up their
physical appearance a bit. And make your own cool car logos and car brands.

Doing it that way, will save you from alot of headaches. Especially from
legal trademark claims headaches etc. And will save you alot of precious
time, that could be used, to start or complete your car game.

Many unity users on this forum, have given similar advice like this, to other
game designers, who have made similar car legality topics like this one.

 

How do we know it hasn't been licensed? I decided to do some research on the company and it's a team of sixteen people which isn't inexpensive. If they can afford that many people on their company how do we know they couldn't have afforded the licenses in question?

Just a thought because it occurred to me this thread has been assuming something that may not be true in all cases.

 

Car manufacturers are brutally specific about how they want their cars to be shown. Very often you cannot depict the cars as damaged (Extreme Car Driving Simulator depicts the cars as damaged).

Ford Software License agreement:
https://support.turbosquid.com/hc/en-us/articles/230097447-Ford-License-Software:
"Vehicles may not be damaged."

It's not always a concern of money but the need for creative freedom. There is a possibility that the vehicles are actually licensed, but the missing logos suggests otherwise.

 

Right. I'm very much aware that there are restrictions on how their cars are to be depicted.

That being said the wording in the license you linked suggests to me that the logos are not a requirement. At least I believe the "or" allows you to have the style without the actual logo itself.

Trade dress being the overall appearance of the product.

https://en.wikipedia.org/wiki/Trade_dress

 

Stop making excuses and either ask a lawyer or make your own car designs.

 

Lookalikes are the way to go.

 

https://www.rockpapershotgun.com/20...-has-won-its-legal-fight-over-having-humvees/

Necroing for closure.

 

Ayyyy

 

I'm glad the judge agreed with me.

 

It's clever but it's not a precedent. It's pretty specific to 2 things:

1. It's for America
2. It's specifically for this case, in no way does it make a blanket statement. Instead it clearly states “artistic relevance” and any harm AM General suffers is minor weighed up against free speech-

So in context it means that humvees are ubiquitous in a military context - it would be odd to not see them in a wargame. It would be a totally different story if you used an iconic Porsche or clearly something that isn't always going to be a common design in context, say a JBC.

I would be cautious.

 

Agreed. Too risky to try to run with very commonly licensed designs.

 

Even accounting for all that, it's still something I would extremely advise against. It's extremely important to remember that this came after a four year legal battle with the weight of Activision's lawyers behind it. None of us are Activision and the legal fees incurred from taking this sort of risk could bankrupt even larger indie studios pretty quick. Sure, there could be an attempt to recoup those legal fees through various legal processes, but even that's not a guaranteed outcome.

 

I think something similar happened before with helicopters.
https://www.hollywoodreporter.com/thr-esq/battlefield-helicopters-video-games-280148

 

Well a federal (United States Judge) just ruled that one could use 'Humvee's' in games because it is 'art'. Now wether this means with logos idk, didn't really read much into it.

Here's one of the articles right here.
https://www.polygon.com/2020/4/3/21207385/call-of-duty-humvee-lawsuit-activision-am-general-ruling

Sets a future precedence for sure. Although I still wouldn't risk it unless you have the bank to back it up.

 

Fixed that for you. The importance isn't that it's art. The importance is that it's art that's relevant to the game. Humvees are military vehicles and Call of Duty is a game with a very heavy military aesthetic. If Activision had used a Ferrari instead the outcome would have been completely different.

Likewise a military vehicle in a game with an aesthetic that doesn't match it would likely lose in a legal battle.

 

Also you can't just go "OK I'm doing GTA so now I can legally use a Ferrari because you find them on roads". Thing is you can't separate military from humvees at this point, but you can easily pick a hundred different cars for a general game or even a racing game, therefore it is not relevant.

And I don't expect this ruling to stay as-is. It'll get challenged.

 

I wanted to add a thing to this. The difference in movies and games in general as far as who pays who to use cars in the production is based on who is benefitting. In a general sense, movies don't necessarily benefit from having a specific car in the movie...so the car maker ends up getting free advertising instead of the movie being made better because of having that specific car.

With games on the other hand, somehow, the typical thing is that the car makes the game better instead of the game advertising the car, so the gamedev has to pay the car maker to use it. The thought is that the game wouldn't be profitable without the car in the eyes of the car maker and so they need to be paid accordingly.

 

That's to the benefit of everyone, as a challenge gets sent to the circuit court and its decision becomes binding on the entire circuit, and is persuasive in courts throughout the country. Though that process can take additional years.

 

Yes but it's especially relevant here, where people easily take what happens today as gospel, develop something then it goes tits up later. I'm very much just going to recommend people steer really clear of anything that might be debatable even, and best of all get actual legal advice.

As for cars I much prefer the designs I would or our designer would invent and why not?

 

Agreed. At the very least we'll have to wait and see if it's able to be appealed to the next tier of the court system. District courts are not the highest tier of the United States court system after all.

 

It's one thing I don't entirely get though.

Just because something has the likeness doesn't mean it is supposed to be it.
For example, in GTA V the phone is pretty much a clone of the iPhone, and yet Apple isn't suing them.

When Apple already has strict rules in place for how their phones are to be used in commercial ventures, according to one producer the 'bad guy' will 'never' have an iPhone because Apple doesn't want them too be displayed in that manner.

But unless I'm missing something, nobody in GTA is a good guy at all and the phone looks very similar in design and logo, and everyone in GTA is a criminal lol.

I'm sure if Hollywood can't work out a deal with usage rights, I'm pretty sure game companies can't either.
So how Apple hasn't done anything to them I don't quite get, because it's an obvious clone to it's "likeness".

EDIT: I feel I should add, I don't think anyone should use the likeness of anything, be creative and unique unless you have the money to back up your rights to said likeness to defend against in court.. I am not a lawyer, so talk to one if you plan on doing something like this.

 

...and most other smartphones aren't? The phone in GTA is basically just "generic smartphone with fruit logo," but that's it. The similarities are also entirely superficial due to the feature replication as well. This is entirely different from "literally a humvee."

 

It has to be close enough, several phone designs have already been through the courts and continue even now. At some point, samsung and apple had a fight about it and it was ruled that apple could only copyright certain parts, and these parts, funnily enough are the unique parts that make it stand out.

You'll notice and can google this, that GTA gets around it by changing those specific identifying parts. Like if a grille has OOOO on it, they can change that to 8==D or something but keep the car mostly intact. They could change the fenders. It is then it's checked by their inhouse legal team before release.

They have a whole process for this, some which is documented online.

A legal dispute needs a % of the design to be close enough. For the other brothers, we changed the colour but also their profession. We also do not crack blocks with heads, there's enough % difference so that TOB never ran foul of nintendo at all. Nintendo twitter accounts followed us for a short while before being satisfied we were being respectful and not in any way pretending to be part of their ip.

Which is good cos TOB never was meant to be related, it was meant to just be inspired by the era.

 

That's not what it is about.

Trademark protects from other people hijacking or ruining your company's image. So, you slap BMW logo into your game, you ride on BMW fame, and at the same your actions affect their reputation, without their permission. They shut it down.

Copyright protects from stealing specific implementation of an idea. For example, you copy design of a car, but technically company worked 5 years designing that damn thing and you decided to reap fruits of their labor for free. So they shut it down too.

At least, that's how it is supposed to be in theory. In reality there are patent trolls, and Disney who spent decades lobbying extensions for copyright protection for their products so they can milk them till next millenium (I suppose lobbying eventually stopped working).

Regarding apple, they patented a rectangle at some point. SO there's that.

 

"You're holding it wrong!" (c)(tm)(r)

--- Steve Jobs​