Video games have come a long way since I was a kid. I grew up with a pixelated plumber jumping on on turtles with frozen facial expression. Sometimes it is hard to believe how far video games have developed, with games like Call of Duty and Grand Theft Auto providing massive digital worlds that mimic and recreate everything from the precise recoil and smoke from an Uzi versus a handgun, to the minute details of Los Angeles, from the fancy high rise buildings to the adult dance clubs. What may be even more surprising is that these video games fall squarely within the protection of the First Amendment.
One of the most successful video game franchises of recent years is Activision’s Call of Duty games. In 2013, Activision released Call of Duty: Ghosts. One of the most popular elements of Call of Duty is the multiplayer mode, where players can play with players both in their own house and across the world.
In the multiplayer mode, you can customize your characters with particular weapons, gear, and “patches” – insignia that some users select in order to create an allegiance to a particular group. The option accurately reflects the use of “morale patches” by actual military members, a practice that goes back at least to the second world war. They can identify specific units, special operations groups, or nothing at all. Most are not sanctioned by the military, though.
In Call of Duty: Ghosts, the selection screen looks like this:
Unfortunately for Activision, one of these patches was a bit too close to real-life for one Mil-Spec Monkey Inc. (“Mil-Spec”) and the company sued Activision for trademark and copyright infringement (the complaint is viewable here). Mil-Spec sells the “Angry Monkey” patch shown below (and others) on their website for a bargain at $4:
Mil-Spec has been selling the patch since 2007, and owns a trademark registration for the design in connection with retail store services featuring clothing, patches, and other gear. The patch could be popular among military members. It happened to be included on the board of morale patches in the first article Google found regarding the history of morale patches, if limited anecdotal evidence means anything (the complaint made no claim as to amount of sales, third-party publicity, etc.).
Activision filed a Motion for Partial Summary Judgment on the trademark infringement claims, claiming that its use was protected by the First Amendment. For expressive works, the Ninth Circuit follows the Rogers v. Grimaldi test to determine whether an infringement claim is barred by the First Amendment. Courts have repeatedly found that video games constitute an expressive work, so the court applied the two-prong Grimaldi test, which asks:
1) Does the use of the mark have “no artistic relevance to the underlying work whatsoever;” and
2) if there is some relevance, does the use still explicitly mislead consumers as to the source or content of the work.
If the answer to either prong is yes, the First Amendment will not protect the use.
As you might guess, the protection for expressive works is strong, as “no artistic relevance whatsoever” is a tough standard for trademark infringement plaintiffs to overcome. Activision argued that there was a need to make the game have a “look and feel” that accurately reflected military missions. Because both parties agreed that “morale patches are popular among military personnel and are often worn in unofficial contexts to allow the wearer to express a sense of personal identity,” the court concluded that the use of the patch had some artistic relevance.
The court then asked whether any other facts suggested that consumers would be misled into thinking that Mil-Spec had endorsed the game through the use of the Angry Monkey patch. However, this prong requires affirmative action and Mil-Spec could not put forth any such action. The game clearly identified Activision as the creator and source of the game. Mil-Spec could not identify any fact other than the use of the mark itself. The court therefore concluded that Activision had not explicitly misled consumers.
Consequently, the court granted Activision’s Motion for Partial Summary Judgment. Mil-Spec still has its claims of copyright infringement, though. But we’ll have to wait and see how that shakes out. If you’re interested in coming to your own conclusion, two patches are compared side-by-side below.
Feel free to make your own predictions as to the copyright claim in the comments. We’ll be sure to follow up in the event the parties don’t reach a settlement.