Why can we use planes and military vehicles, but not other things?

Question

Something sounds a little odd. It seems to me the status quo that if I wanted to put a real car or motorcycle into a video game, say a Toyota or a Ferrari, everyone would say that the default position is that you're not allowed, and that you'd need to ask permission first, and that most likely permission wouldn't be granted, and that the license to place such a thing in my game would cost a fortune.

On the other I've noticed that people are much more confident about placing planes and military vehicles into a game, or display or render. I guess I'll start off with WW2 examples, and move from there. If we take the example of the P-51 Mustang fighter plane, it was manufactured by North American Aviation. That company doesn't exist anymore exactly, but was merged into North American Rockwell, which then became named Rockwell International, and now is part of Boeing.

OK, so there's no problem including a P-51 Mustang in your production. I guess you might say that the rights ownership transitioned so many times and over such a long period that Boeing really doesn't care if you include a P-51 Mustang in your production.

Let's take another example, Boeing P-26 Peashooter, a 1930s fighter plane. In this case the manufacturer was all along Boeing. I am confident there is still no problem in including this in your production. In this case you might say that the plane is so old Boeing doesn't care if you include it in your production.

You might say the same about the Mitsubishi and Kawasaki WW2 era planes.

Even more recently, with the F-16 you'd think rights holders would be General Dynamics or Lockheed Martin. I'm pretty sure you won't have a problem with including an F-16. One of the designers of the F/A-18 Hornet was McDonnell Douglas (now Boeing). Same thing goes here.

In fact you can fast forward all the way to the present to the F-35 Lightning II, which was designed and built by Lockheed Martin. I doubt very much there would be issues with including this plane in your production.

So the thing in common with all the above planes is that they're military.

If we consider civilian planes like the 737 and 747, I feel there is no problem displaying these and putting them into productions. GPL'd flight simulators have been taken and commercialized (sold), with these models in it, and I doubt very much either that permission was sought, or in the case that it was sought I'm almost sure they didn't pay for any license to have them in their game.

So with civilian planes I feel this is very much the same thing. Correct me if I'm wrong.

On the other hand if I said I was I going to include a Porsche 912 from the 60s in my production, you would say I would be crazy to do so without permission, and to get a license to do so would cost me a fortune. However I'd expect a completely different reaction to for example the Porsche 597 from the 50s.

So I'm noticing two things:

1. Military vehicles seem to be able to be used more permissively (a lot a more permissively).
2. Civilian aircraft seem to be able to be used more permissively) than civilian land vehicles.

As for boats and ships, it's something I haven't thought of that much. And in the case of VERY old civilian land vehicles, such as maybe the first Chevrolet from 1913, though I'd be guessing, I imagine wouldn't be a problem using its likeness in a production such as a film or game or something. It's very interesting, I feel if someone used the likeness of one of the earliest Ford motor cars, the problem would be to a much greater extent using the trademarked Ford logo than that the likeness of the actual Ford model. Does anyone know roughly speaking why there are these differences in the status quo?

Answer 1

I think this all boils down to Intellectual Property Laws. As I understand it (former dev, not a lawyer), there are several kinds of intellectual property.

1) Trade Secrets. As long as you keep it a secret, it's yours... but once it's out, it's out. Not terribly relevant.

2) Patents. The government protects your right to a particular implementation of a particular idea for a particular length of time. Not terribly relevant.

3) Trademarks. Defending your name, avoiding confusion, blah blah blah... I don't know much about trade marks. Somewhat relevant to the conversation at hand.

4) Copyrights. Pretty sure this is what applies. The right to copy. In exchange for enriching the world by publishing your thing (book, song, whatever), the government will protect your right to say who is or isn't allowed to make copies of your work.

The important thing about copyright law in the US is that the government will only back you up as long as you continue to defend it. If, for example, an author runs across some fan fiction containing characters they've created, they're legally obligated to defend their ownership of those characters. Folks who write fan fic are usually rabid fans, so authors often turn a blind eye to such things... either by actively avoiding such things, or by claiming they do. ;)

If they don't defend it, they lose the copyright. This is what I think applies here.

Copyright is also limited by what is called "fair use". You can reproduce part of a work to critique it, or for educational purposes, or parody, for examples. The fourth fair use metric is "Effect on the work's value", and I think this is the meat of the argument against inclusion of Thing X (whatever that might be) in a game. The value of a fighter jet is not (just) it's price tag, but in it's ability to Blow Shit Up.

On the other hand, precedent carries a great deal of weight. If other games have reproduced X, Y, and Z, in the past without paying for it, you can reproduce it too. See also "you have to defend your copyright".

In hunting down those links, I learned about two new categories of IP, "Industrial Design", and "Trade Dress", both of which may be relevant. Do your research.