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Why It’s So Hard to Stop Marketing Guns inVideo Games


Video games don’t cause mass shootings, butthey do serve as insidious advertisements for weapons.


Video-game guns are so similar to real gunsthat comparing the two has spawned its own YouTube micro-genre. Fans of themost popular first-person shooter games—Fortnite, Apex Legends, Call of Duty,PlayerUnknown’s Battlegrounds—have created dozens of “guns in real life”videos, dedicated to explaining all the similarities between real guns andtheir virtual counterparts: their weight, their rate of fire, the physicalstamina needed to carry and fire them in real life, and their efficacy in eachcorresponding game. Brownells, a real-world gun and gun-accessory manufacturer,has done the same.


A single game could have hundreds of suchlicenses, one lawyer whose firm offers legal counsel to video-game companiestold me. (The lawyer requested anonymity because of worries that speakingpublicly would jeopardize business relationships.) In exchange for the use oftheir intellectual property, manufacturers would stipulate that the weapons inthe games be portrayed realistically and positively. Money rarely changedhands, but the relationship was symbiotic: Game companies got verisimilitudefrom featuring trademarked guns; gun manufacturers got easy, free exposure, ontheir terms.

一家為電子游戲廠商提供法律服務的律師告訴我,一部游戲可能得獲得數百個許可證才能上市。(這名律師要求匿名,因為擔心公開發言會損害公司業務。) 作為使用槍支廠商知識產權的交換,制造商規定游戲中出現的武器必須被真實詳細地描繪出來。兩者很少產生金錢交易,但它們之間的關系互利共生:游戲公司通過使用帶有授權許可的槍支而獲得真實感;而槍支制造商則獲得了輕松免費的產品曝光度。

But then two events changed the tenor ofthat relationship, at least on the surface.


The first was a landmark 2011 Supreme Courtruling, Brown v. Entertainment Merchants Association. The Court struck down aCalifornia law banning stores from selling violent video games to minorswithout an adult present. It effectively granted video games new legal standingas bona fide artistic expressions, with similar legal privileges to movies, TV,and books, which, generally speaking, do not need to license products in orderto depict them. Justice Antonin Scalia wrote the opinion, finding that“California’s claim that ‘interactive’ video games present special problems, inthat the player participates in the violent action on screen and determines itsoutcome, is unpersuasive.”


Legal experts repeated similar comparisonsin conversations with me: Imagine if a book had to license references toPorsche, or the Beatles, or the Statue of Liberty. Imagine if TV shows had tolicense every onscreen iPhone or can of Coke. Companies have the right toprotect their trademarks, but when courts granted games First Amendmentprotections, they gained new legal standing. As long as they didn’t misleadconsumers into thinking that the manufacturers sponsored the game, they werefree to fully represent their fictional worlds and stories as they imaginedthem.


Since 2013, most producers of first-personshooter games have followed EA’s lead in eschewing licensing deals. Last week,I reached out to the companies behind the biggest shooting games in theindustry: Activision, EA, Take-Two Interactive, Rebellion, Bethesda GameStudios, PUBG, Epic Games, and Avalanche Studios. EA, Rebellion (the maker ofthe Battlezone series), and Take-Two Interactive (which owns Rockstar Games,the maker of the Grand Theft Auto series) confirmed that none of the weapons intheir games was under a licensing deal. The others didn’t respond to requestsfor comment.

自2013年以來大多數第一人稱射擊游戲開發商都效仿EA的做法,回避與武器廠商的授權交易。上周我接觸了業內最大射擊游戲開發商:Activision、EA、Take-Two Interactive、Rebellion、Bethesda Game Studios、PUBG、Epic games和暴雪工作室。EA、Rebellion(《Battlezone》系列制造商)和Take-Two Interactive(《俠盜獵車手》系列制造商Rockstar Games母公司)證實,他們游戲中沒有一款武器得到了協議。其他廠商則沒有回復置評請求。

Since the 2011 ruling, trademark casesagainst video-game companies have mostly been about vehicles, such ashelicopters and brand-name Humvees. Two legal experts told me that they wereunaware of any case in which a gun manufacturer filed suit against a gamingcompany since EA’s 2013 position, even if trademarked weapons were used.


“When it comes to balancing trademark andFirst Amendment, your use is probably okay unless [it] had no artistic relevanceor [it] was deliberately misleading,” says Steve Chang, a trademark expert andadjunct professor at Georgetown Law.


Another lawyer familiar with thedevelopment and consultation process, who requested anonymity because he wasn’tauthorized to speak on the record, explained that gaming companies still workdirectly with trademarked material. The legal-review process is eerily similarto the one portrayed in guns-in-real-life YouTube videos. Game companies submitvirtual guns to intellectual-property lawyers, either internally or at outsidefirms. Lawyers view images of real guns and how altered versions will appear inthe game, recommending changes so that guns are recognizable but don’t meet thestandard for infringement.


There’s almost no way for shooting gamesnot to endorse guns through flattering portrayals, especially if gamersthemselves are the ones mining that connection. While 2011 marked a major legalshift, game companies have distanced themselves in name but not effect.