In September 2018, the Victoria and Albert Museum presented an exhibition highlighting video games. They’re one of many institutions that have taken more notice of video games in recent years but the “is it art?” question still looms large. A New York judge has potentially made more room for video games in the art world with his recent ruling in a lawsuit concerning Call of Duty.
Call of Duty, as you probably well know, is a first-person shooter video game that first debuted in 2003. Originally based on World War II, the war-based game has since expanded, simulating other wars – some more realistic than others – and has become one of the most popular video games out there. Produced by Activision, the game is “characterized by its realism, cinematic set-pieces, and fast-paced multiplayer mode,” according to the court report. It also includes the use of Humvees, one of the most iconic military vehicles, made by AM General, who subsequently sued Activision for the use of the vehicle in their games.
AM General’s lawsuit hinged on licensing, stating that the use of the Humvee in the game could mislead consumers into thinking AM General licensed the game. In a March 31st ruling, though, District Judge George B. Daniels ruled in favour of Activision finding that due to the nature of the two companies, any confusion over licensing would be minimal.
The court found that the inclusion of the Humvee, which has been a staple in the US armed forces since 1983, enhanced the realistic nature of the game. “If realism is an artistic goal,” wrote Daniels, “then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal.” Furthering the point, Daniels deemed the use of the Humvee to be an “‘integral element’ of artistic expression rather than a willful attempt to garnish the trademark owner’s goodwill for profit.”
Within his ruling, Daniels referred to legislation typically used to protect the use of trademarks by artists in their creations. Thus, Daniels’ decision marks a monumental moment for video game makers, enthusiasts, and players, giving the field more clout in the art world. According to CCN, this represents “the first lawsuit where that artistic protection has been tested for a specific game and licensing dispute, rather than a designation broadly applied to games as a whole.”
For many, the ruling is likely to set a standard in future suits. “When a ruling is handed down it becomes precedent,” said Leila Amineddoleh, an intellectual property lawyer, in The Art Newspaper. “This may encourage other video game creators and artists to more aggressively protect their rights because it shows a willingness by the court to recognize this medium as art.”
