Confident video gaming corporate juggernaut Electronic Arts is preemptively taking Textron Inc. and its Texas bases subsidiary Bell Helicopter to US Federal court in California in an attempt to convince the court to rule in favor of allowing them to continue using images of Textron’s weapons and aircraft such as the V-22 Osprey and AH-1Z Viper to promote their video game BF3 without having to pay any licensing or royalty fees to Textron itself.

The lawsuit is a result of negotiations which recently broke down between the two corporations, with Textron and Bell now demanding that without a licensing deal, EA should stop explicitly using images of their V-22, AH-1Z and UH-1Y aircraft in Battlefield 3 promotions and media. Textron argues that these aircraft are their own direct privately owned business patent, trademark and copyright property irregardless of the fact that they are essentially the result of taxpayer dollars publicly funded through the U.S. Defense Department. The U.S. defense department in turn doesn’t usually assert trademark or copyright claims to the products or projects they fund.

However Electronic Arts seems to be very confident in this one, asserting that video games are in fact protected by the First Amendment of the U.S. Constitution and are a form of free speech and that seeings how these images are already so widely used in the public domain it therefore invalidates any of Textron’s trademark or copyright protection. Obviously Textron has not commented on this assertion by EA as to do so would be unwise considering the on going litigation.

Of course, considering last year’s ruling by the U.S. Supreme Court which effectively in a rather comprehensive way ruled that in the US, video games are essentially considered a form of protected speech with the same rights as those protecting various other forms of entertainment, media and political discourse.

Whether or not this also applies to the trademark issue with Textron remains to be seen, but most analysts believe it does and they argue it will be very difficult for Textron to prove that the usage of the images of their aircraft products in the context of a video game somehow reduces or damages the distinctiveness of their products in the real world military aircraft marketplace. Granted if EA started actually producing real world military aircraft instead of video games then it would be a clear violation but as it is it stands it seems like a rather difficult position to argue.

EA also strategically filed the suit in a District of California which is known from past rulings to be rather opposed to intellectual property claims due to its regular dealings and its proximity to the business interests in the area in which it operates, that of course being in the heart of the U.S. software and tech industry.

Another factor potentially bolstering EA’s confidence in launching the preemptive lawsuit is the U.S. defense department itself, which is well known too cooperate and lobby the media and entertainment industries to feature as much militarism as possible in its products to the masses in order to help with their public relations and encourage the promotion of the military to impressionable youths in the hopes of gaining new recruits.

While it certainly seems like EA has the upper hand going into this one, it will nevertheless be interesting to read the final ruling on this one.