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Usage of real weapons in a game

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Greetings everyone, Having searched the forums for information on this topic already, I realise there has already been a related thread which has come and gone. However, there weren't really any thoughts offered by anyone who has actually gone through this process, just opinions of people who appeared to be exercising common sense to varying degrees. So I apologise for creating a new thread on the topic, but I just want to try to get a fresh discussion going and hopefully draw interest from anyone who might have some actual professional experience with this. I am currently researching licensing requirements for the use of existing modern military weaponry in our upcoming First Person Shooter (which will be a commercial product). We have a preliminary list of weapons that we would like to include, but we are unsure about how to proceed in verifying whether or not we need permission to use these weapons (their names and their physical likeness). The research I've done so far, via a combination of visiting developers forums and contacting some developers directly has left me with a variety of different answers, including: - "As long as the weapon in question is in use by an official military (ie. US Army, British Army, Austrian Army, etc etc) somewhere in the world, it is considered public domain and can be used freely." - "Weapons manufacurers will want to retain control over their designs and trademarks and therefore some kind of agreement must be reached with them in order to use their weapons in your game." - "As long as you only use the technical designation for the weapon (ie. "M16, M4, AK74, etc") and not the manufacturers name (ie. "Colt, Heckler & Koch, Steyr, etc"), you can freely use the weapon without any permission required." - "You can -slightly- modify the weapon model and call it a different name (ie. "M4A1 Colt Carbine" becomes "M34 Barker Carbine"), thereby avoiding the necessity to get permission to use it in your game." - "Go away and ask your lawyers to look into it." As you can see, these replies don't really point towards any definitive answer. I realise that the most definitive way to get an answer would be to contact the various manufacturers directly, but in order to avoid any unnecessarily complicated legal negotiations this early in my research (before we even know for sure if we DEFINITELY want these specific weapons), I am first trying to get more answers from developers who have been in a similar position. Kind Regards, RedRaider

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I would be interested in a definitive answer to this also. A game we were working on previously (it's on the back-burner at present) required a combination of ancient and pre-1900's weapons and I'd always assumed we could use them in a game without asking for permission....now I'm not so sure :)

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Suggestions 3 and 5 look very reasonable. 3) is good because you cannot trademark an abbreviation as-is (e.g. M4A1 Colt Carabine is protected, while M4A1 alone isn't). In any case - just do the game and ask the weapon manufacturers once you have (nearly) finished your project. You can still rename your weapons later anyway.

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Quote:
Original post by evelyn
I would be interested in a definitive answer to this also. A game we were working on previously (it's on the back-burner at present) required a combination of ancient and pre-1900's weapons and I'd always assumed we could use them in a game without asking for permission....now I'm not so sure :)

You definately can.

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The definitive answer is "no". - or to be more specific "no you can't without exposing yourself to very expensive legal action".

The only worthwhile advise in the list above is number 5 - talk to a lawyer. However, even if a lawyer tell you that you can you still aren't safe because it doesn't stop the manufacturers coming after you and costing you very large legal fees to defend your case.

Put simply, unless you actually own the IP for the weapon, or have a written agreement with the manufacturer, or actual proof that the item is in the public domain; then using it exposes you to possible legal action.

There is a thread IGDA forums (Trademarking History) which clearly shows this (it may well be one of your threads). It discusses a case where the makers of a WWII aircraft have approached a developer demanding a license fee for an aircraft they almost certainly don't make/sell any more. Lawyers posting to the thread have indicated that the claim is without foundation and yet the game's publisher has paid up. They did so, not because they believe the maker has a claim, but because delaying the release of the game costs money and if the manufacturer commences legal action (even if it never goes to court) that will cost tens or even hundreds of thousands of dollars in legal fees.

The other thing the above thread shows is how pointless it is to ask for legal advice in forums. Put simply you are seeking to make commercial gain from someone else's intellectual property. It is highly likely that if they discover you have done this without permission they will come after you regardless of if they have a case or not. Talking to a lawyer is just part of the "cost" of including real weapons. If you wont pay the cost then either don't use the weapons or accept the fact that you are exposing yourself to potentially damaging legal action down the line.

Whatever you decide - good luck with the project :)

Quote:
Original post by darookie
Quote:
Original post by evelyn
I would be interested in a definitive answer to this also. A game we were working on previously (it's on the back-burner at present) required a combination of ancient and pre-1900's weapons and I'd always assumed we could use them in a game without asking for permission....now I'm not so sure :)

You definately can.


And this is the problem with asking in forums because the above advise could well be wrong. Trademarks don't expire if a company is still making and selling a product. It is possible (although unlikely) that the original manufacturer of an old weapon (or a company which bought them/the rights) is still making the weapons in question and selling them to gun enthusiasts, re-enactment groups or simply as souvenir. In that case use of the trademark would be a breach.

As I say, unlikely, but possible - make sure or take the risk.

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Quote:
Original post by Obscure
As I say, unlikely, but possible - make sure or take the risk.

I'd say - always take the risk. Claims about that would still be subject to fair use. And the efforts of researching whether an ancient product is still in production somehow is much greater than the effort of altering a small part of the game afterwards.
And w/ regards to existing companies - I'd just ask them in this special case. A simple 'no you may not do that' from H&K or Colt should be definite enough [smile]

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Hi everyone,

Thanks for prompt responses from everyone so far. We did note fairly early on that well known (and therefore seemingly well-funded) projects like Counter-Strike's commercial version and Soldier of Fortune 1 used fake names for their weapons, which seemed to immediately imply that they had run into some kind of obstacle in using the real weapon names (because after all, why change the names if you're totally free to use them?).

I suppose in the back of my mind I knew that some kind of legal agreement would have to be drawn up, given that who -wouldn't- try to protect their trademarked products? I was just mildly hoping that -maybe- there was some easy (never is though eh? :-)) way through this. As we're not a big developer and we have to watch our budget to a certain degree, I think I'll probably go for the option of changing the weapon names and modifying the designs significantly so as to be visibly different from (yet reminiscent of) the originals.

Which leads me to my next question: Are there any established guidelines commonly used in the industry for precisely how much is 'enough' when it comes to modifying designs in order to not be considered a copy?

Anyway, thanks again for the input so far. Regarding forums not being the ideal place to get feedback on this kind of stuff, I fully understand that and am not going to take anything mentioned here as -absolute- gospel. It's just nice to be able to chat about our work with people who have had some experience with this sort of thing. I suspected that we'd have to either do the whole legal thing OR make completely original weapons, and the most common sense feedback has actually pushed me in that direction, so this -has- been useful.

If anyone has anything else to offer on the topic, please do so. It's all interesting. :-)

Kind Regards,

Omar Salleh
Lead Designer
Tragnarion Studios

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Quote:
Original post by RedRaider
Which leads me to my next question: Are there any established guidelines commonly used in the industry for precisely how much is 'enough' when it comes to modifying designs in order to not be considered a copy?


Sadly no clear guidelines because, technically, any amount of copying would constitute a derivative work and thus would be a breach. Of course, if the changes are extreme you wont get caught but it still isn't possible to set solid guidelines for something that isn't allowed.

If the shape is similar then you certainly need to steer clear of names, trademarks & logos. If you have a similar shape and a name that has been slightly changed to obscure the truth then you might get into trouble.

[Edited by - Obscure on December 20, 2004 11:00:28 AM]

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Thanks Obscure for your very sensible advice so far. We've narrowed it down the two safest options: Either A) get permission directly from the manufacturer (which will likely involve a fee), or B) design our own weapons from scratch.

My reason for ideally wanting to use the real weapon designs and names is that our FPS is has a military theme and therefore I would have liked to include as many elements as possible that appeal to established fans of the genre. The weapon variety in games such as Rainbow 6 series, Counter-Strike, etc leads to a lot of ongoing debate and discussion on player forums long after the title is released, plus fans of military-themed FPS games tend to have favourite weapons that they often choose -regardless- of how good it actually is in the game. Basically I wanted to make use of all that. I know that I, personally, am a big fan of the M4A1 Colt Carbine, for example! :-)

Anyway, one final question before I let this topic drop. Has anyone here had any experience actually contacting a weapons manufacturer to acquire permission to use a weapon in their game? I'd like to have a rough idea of what kind of figures are involved before I contact them and ask them straight up, just so that I know if we're getting taken advantage of or not (given that we're new to this aspect of games development legality). Anyone?

Many thanks,

Omar Salleh
Lead Designer
Tragnarion Studios

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Fees will vary depending on the product. If it was James Bond film the fee would be big. If you can show proper sales projections and financials that show how much you will make then they may settle for a % of that - or they may decide that all video games make hundreds of millions and they want a slice. It all comes down to feeling them out as you talk to them. I have done licensing deals where I just walk up to someone at a show and ask "is that available?" - they reply that is is a number is mentioned, we shake hands and the next day a sample arrives at my hotel ready to be shipped home. In other cases people get giant money bags in their mind and you have to try to prove that isn't going to happen.

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This page on bitlaw describes what trademark infringement consists of:
http://www.bitlaw.com/trademark/infringe.html

"The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff."

The most important thing about trademark infringement is that you are causing a consumer to confuse you with the person who owns the trademark. In other words, they might think that your game was authorized by Colt because it features Colt firearms. I think that's a stretch. Now, if you named the game "Colt Firearms", that's obviously going to cause confusion because a reasonable person would believe the game was either made by Colt or at least approved by them.

Simply using the guns as possible weapons in the game? I don't see how that's infringement, any more than writing a novel where the main character uses a Walther P99 is infringing on Walther's trademark.

Moreover, it is acknowledged in the courts that you have to be able to use trademarked names in a descriptive sense. There was a case regarding the Boston Marathon suing people for using its name. They lost because the courts found that it would be ridiculous to force people to refer to "That long race in a city on the Eastern Seaboard".

Can they sue you? Of course. I could sue anyone on this board. Can they win? Probably not, but it still costs money to defend yourself.

In actuality, what are the odds that an indie will make enough money to be worth suing? Or that your game will ever come to their attention?

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Quote:
Original post by milieu
This page on bitlaw describes what trademark infringement consists of:
http://www.bitlaw.com/trademark/infringe.html

That particular page refers to common law (unregistered) trademarks. The protections for registered trademarks are much greater and the need to prove lose is removed.

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From Colt's own website:
Quote:
These materials are provided by Colt Defense LLC ("Defense") as a service to its customers and may be used for informational purposes only. Single copies may be downloaded subject to the provisions below. By downloading any materials from this site, you agree to these terms.

SINGLE COPY LICENSE: You may download one copy of the information or software ("Materials") found on Defense’s website on a single computer for your personal, non-commercial internal use only. This is a license, not a transfer of title, and is subject to the following restrictions: you may not: (a) modify the Materials or use them for any commercial purpose, or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble software Materials; (c) remove any copyright or other proprietary notices from the Materials; (d) transfer the Materials to another person. You agree to prevent, and report to Defense, any unauthorized copying of the Materials.

TRADEMARK INFORMATION: The trademarks and/or service marks of Defense include, but are not limited to, the trademarks and service marks listed below. Some or all of these trademarks or service marks have been registered in the trademark registries of the European Union and/or foreign countries.

(blah blah various weapons named)

The trademarks, trade dress and service marks of Defense are referred to herein as "Defense trademarks." Defense trademarks may be used publicly with permission only from Defense. Fair use of Defense trademarks in advertising and promotion of Defense products is permitted only with proper acknowledegment.

And that was just with a cursory search.

Considering you're talking a firearms company with government/military licenses, I'd tread very carefully on any potential infringements.

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What about fair use? Say, I make a movie and in the movie someone uses a Colt pistol to kill someone? Can they sue me? I guess so, but they shouldn't be able to win. Caterpillar sued Disney because in some movie they used the Caterpillar bulldozers to destroy a jungle, so Caterpillar bitched that it makes the company look bad. AFAIK, they lost.

Also, what if you put somewhere in your game manual something like: "Colt [weapon name] is a registered trademark of Cold whatever"?

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Guest Anonymous Poster
Why don't some of us create some clearly public domain weapons, that look reasonable but aren't infringing, so that we won't need to worry about such ridiculous things? If we use a creative commons license it may solve this problem.
It sounds like we must create some ourselves anyways, so how hard would it be to slap a creative commons license on the weapon designs?

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