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

Discussion in 'General Discussion' started by Mr-Mechanical, Aug 9, 2018.

  1. Mr-Mechanical

    Mr-Mechanical

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    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?
     
    Last edited: Aug 11, 2018
  2. Murgilod

    Murgilod

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    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.
     
  3. hippocoder

    hippocoder

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    GTA thrives on lookalikes.
     
    Tom_Veg likes this.
  4. Mr-Mechanical

    Mr-Mechanical

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  5. halley

    halley

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    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.
     
    Mr-Mechanical likes this.
  6. Mr-Mechanical

    Mr-Mechanical

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    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.
     
  7. Joe-Censored

    Joe-Censored

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    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.
     
    Mr-Mechanical likes this.
  8. AndersMalmgren

    AndersMalmgren

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    Alarming, I have these in my game

    https://assetstore.unity.com/packag...vee-military-vehicle-with-6-camouflages-65447
     
    Mr-Mechanical likes this.
  9. Mr-Mechanical

    Mr-Mechanical

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    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.
     
  10. Mr-Mechanical

    Mr-Mechanical

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    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?
     
    Last edited: Aug 9, 2018
  11. hippocoder

    hippocoder

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    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.
     
  12. Ryiah

    Ryiah

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    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.
     
    Last edited: Aug 9, 2018
  13. Mr-Mechanical

    Mr-Mechanical

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    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?
     
  14. Mr-Mechanical

    Mr-Mechanical

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    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.
     
    Last edited: Aug 9, 2018
  15. Mr-Mechanical

    Mr-Mechanical

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  16. hippocoder

    hippocoder

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    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.
     
  17. Mr-Mechanical

    Mr-Mechanical

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    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).
     
  18. Mr-Mechanical

    Mr-Mechanical

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    programmers should be programmers and lawyers should be lawyers

    lol what am i doing
     
  19. zombiegorilla

    zombiegorilla

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

    moonjump

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    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.
     
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  21. zombiegorilla

    zombiegorilla

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    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.
     
    Ryiah likes this.
  22. AndersMalmgren

    AndersMalmgren

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    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 :D).
     
  23. moonjump

    moonjump

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    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.
     
  24. Mr-Mechanical

    Mr-Mechanical

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    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)."
     
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  25. BrandyStarbrite

    BrandyStarbrite

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    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.
     
    Last edited: Aug 11, 2018
    XCPU likes this.
  26. Ryiah

    Ryiah

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    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.
     
  27. Mr-Mechanical

    Mr-Mechanical

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    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.
     
  28. Ryiah

    Ryiah

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    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
     
  29. Murgilod

    Murgilod

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    Stop making excuses and either ask a lawyer or make your own car designs.
     
    hippocoder likes this.
  30. Tom_Veg

    Tom_Veg

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    Lookalikes are the way to go. :cool: