Hello, If I make a car with same model and using its name, do I need to buy license? Or I can make it and using it in commercial game for free? For example, I want to make Tesla car.
And how about guns? For example Ruger 22/45 Lite
Thank you very much.
It’s not a copyright issue but a Trademark violation and although you could buy a license it would be rather expensive. Example you can call a side arm a 1911 but you can’t call it a COLT 1911 as the name COLT is trademarked.
As the other poster noted, you can’t use the trademark. If you wanted to use a Tesla car, you should probably get in contact with Tesla Motors in the respect, or you could make it almost like a Tesla but change it’s name and appearance enough to not have any IP rights problems.
Thank you very much, so for weapon I can use number only like XXX 22/45 and change the appearance enough. And for car, maybe combining several car design and make a new name is the best solution.
But how about AK 47? Its been used in most shooting game. Is there any criteria for weapon that safe to use in game without need to pay for license?
Look at e.g. GTA for examples of how close resemblance can be to the real world counterpart.
I’m no lawyer so if it really matters pay for your advice as you should as to due diligence.
Historically speaking I have yet to hear of any game company being sued for using branded weapons except for AE games and I think they only made an issue of it all to create hype around the Medal of Honor title.
In theory you do not have to pay any kind of license for a digital representation of anything that would normally be covered by a patent as to functionality and as EA has stated the use of a digital asset in this manner falls under the category of fair use for the purpose of entertainment and the odds of you being sued are 0% if you fail to launch to 100% if your game title becomes the hottest thing since Angry Birds.
Rule in hand though is avoid Branding or the use of anything that would be unique to identifying a company as being unique and you should be on safe “defensible” ground.
I am an IP lawyer (patent attorney) but not in the US, so I cannot speak with absolute authority on this, but I would clarify a few things.
Just because no-one has ever been sued doesn’t mean you’re in the clear. EA won’t be fun to sue even with a good case because it has deep pockets. Smaller fry aren’t fun to sue because they have no money. And as someone mentioned, it is good advertising for the weapons manufacturers so they probably tolerate it for that reason.
I can assure you that just because EA say they’re entitled to use trade marks in that fashion, it does not mean that they are entitled to use trade marks in that fashion. “Fair use for the purpose of entertainment” is not a legally recognised copyright or trade mark exemption.
What you say about patents is a bit unclear. There are essentially three kinds of IP you need to worry about when copying a real world gun: trade marks, designs and copyright. Copyright can exist in design-related aspects but this is quite a grey area and legally difficult, and also not the main concern so I will leave that to one side.
Trade marks cover branding, and can be infringed by use of the trade marks word or sign ‘during the course of trade’. Yes there is a question over whether a gun in a game is trade mark use, and EA is certainly arguing the toss, but I think it is more likely than not to be trade mark use. For example, the doctrine of trade mark dilution may be invoked (essentially alleging damage to a trade mark by association with something unpleasant/unsanctioned - one of the classic cases involved a coke bottle used in a ***** film, and also the Dallas Cowboys sued the makers of Debbie Does Dallas; it’s a wonderful area of law…). So if you use a direct reference to a trade marked name, which may be the maker name (Colt) or the particular brand of gun (Desert Eagle), then you are potentially in legal jeopardy. Will you get sued for it? In truth, probably only if you are medium successful (got enough money to make it worth suing but not enough to put up a big fight) and/or make the trade marked guns look and feel lousy. Who knows, but if you want investors, play it safe.
There are such thing as design patents and registered (also unregistered) designs elsewhere. These cover the shape and appearance of a product. Here is a Colt US design patent that I found with 5 seconds of searching: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&u=%2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=12&p=1&f=G&l=50&d=PTXT&S1=colt.ASNM.&OS=an/colt&RS=AN/colt
I don’t know how well-protected everyone’s guns are but chances are they are, and you will infringe by reproducing the same design/product. This is an area where copyright can come into play as well so don’t think you’re in the clear just because you can’t find a design registration. Purely functional aspects are not covered by a design, which ties in the patent point I think, but (strictly speaking) the criteria for what is excluded on a design is not the same as the criteria for what can be granted a patent. Basically the functional exemption is a red herring - as noted elsewhere, just vary the design so it will not be perceived as the same. How far should you vary the design? How long is a piece of string, and what is your lawyer’s hourly rate?
Here is some info on copyright fair use for film makers with a US focus (a related field): Best Entertainment Lawyer Los Angeles, Entertainment Attorney, Top Entertainment Law Firm
Here is something on fair use for copyright (also US focus): http://www.inta.org/TrademarkBasics/FactSheets/Pages/FairUse.aspx
I hesitate to say you’re safe in any situation, but I’m a lawyer… but yes, best avoid all trade marks to be safe. There is some grey area (in at least some countries) over using words that identify a product in trade even if not formally registered, but for all I know ‘1911’ may be/can be registered as a trade mark (doesn’t matter that it’s just a number - you can have trade marks for pure colours these days).
I wrote up a more general IP guide relating to games here if it’s of any use: IP rights relating to game development (a brief guide) - Community & Industry Discussion - Epic Developer Community Forums
I hope that clears things up - good luck!
Sorry, I’ve been talking about guns and I realised the OP was about cars. Well, same applies - don’t make an exact copy and don’t use brand names (Tesla / Model S, etc).
There may be a whole other set of industry standards vis a vis licensing cars, and I think that is a thing (and the car companies will want to protect this market) so take care.
Well as I’ve mentioned is the odds are 0% that one would be sued if no one knows your there where it’s 100% if you become as popular as Angry Birds. The true nature of civil law is it’s not who is right or wrong based on fair use doctrine but who has the best story in a court of law.
The EA case makes for an interesting read as it’s not even clear that they were being sued or had been paying for licensing fees
The bottom line though is the odds are not in ones favor as to the ideals of what would be assumed as fair use.
For example.
“System and method for processing microtransactions”
Use Micro transactions in your game you owe JP Morgan a licensing fee. 
Overall though don’t listen to me but serve ones own due diligence as to what “could” happen “after” the game has been released as anything involving digital IP is a mess.
It is a fact that your size and prominence can make it more likely that you’ll be sued, and who has the best story is a factor in jury trials certainly, but that’s not the only factor in play and it depends on what kind of case and jurisdiction, etc. In the UK, for example, patent cases are heard before a specialist patent judge and the loser often has to pay the winner’s costs, which restricts vexatious litigation - different kettle of fish entirely. Also cease-and-desist letters can and do go to all and sundry, and you can get your game shut down relatively easily and cheaply under the DMCA etc in some cases.
“Use Micro transactions in your game you owe JP Morgan a licensing fee” - that’s the kind of thing people like to say but the claim is not as brief as the use of micro transactions per se. The claim includes this portion, for example: “wherein the microtransaction includes a first set of attributes and the non-microtransaction includes a second set of attributes, the first set of attributes different from the second set of attributes, and the first set of attributes including a decreased ability to challenge charges as being incorrect when compared to the second set of attributes.”
Quite what that means in layman’s terms I couldn’t tell you without looking at the patent as a whole, and I can’t be bothered right now, but if you don’t do what that thing says, you won’t infringe. So it doesn’t cover JUST using micro-transactions. But you’d be well-advised to consider it before implementing your own system…
Digital IP is a bit of a mess. I’m not sure quite what you’re suggesting but due diligence (especially regarding brands) is a thing to get right before you launch, not after. Also some things like patents and - to an extent - designs can’t be obtained after you’ve disclosed them (sold/trailed/publicised/etc).
First: The exact landscape varies by country.
Second: The exact landscape varies by who you ask within the country.
For example, an architect has copyright on the building she draws.
However, by building something that is visible to public space, there is an implicit assumption that pictures that include this thing, from the public space, are not “partially owned” by that architect.
The same theory can be held for advertising, cars, and other objects found in public spaces.
If you take a picture of Times Square, with cars, advertising, and buildings on it, it’s not actually the case that each of the owners of each of the objects within that picture, own part of your picture.
What gets into a gray zone is the question of reconstruction in 3D.
One argument is that, because you have “perfect control” of what you create in 3D, the choice to replicate some existing physical design, might be considered as infringement.
Another argument is that, to replicate a natural, public space, in 3D, just like you do in 2D with a photograph, those meshes/textures obviously have to look like their real-life counterparts.
Similarly, when I write a book, and I mention that someone assembles an IKEA bookshelf, and drinks a Coca Cola beverage at the time, the argument can be made that those are objects from real live used in a fictional setting – both the “infringement” and “public space” arguments may hold there.
It’s also the case that the amount of focus put on a particular piece may matter – if you make a photo book entirely about one particular building, the architect for that building may have a different claim, than if that building happens to be in the background of a photobook of people on the street of a city.
So, if you really, honestly, need to worry about this, you need to talk to people who actually do this thing for a living, which may include trademark and copyright lawyers and licensing agents, as well as the specific use you make of the various objects.
My advice? Build a sci-fi game with made-up stuff 
Yes this is what I’m suggesting as to best practice of being aware of what could happen and not so much that it will. Things in the digital world changes to fast to always be aware that one is even on safe ground as to defendable rights.
Case in point.
George Lucas was always fair as to sharing the world of Star Wars with the fans but with the sale of LucasArts Disney has been busy shutting down anything and everything connected to SW as fan art under IP and copyright violations.
Kind of silly hu?
Sooooo
If you make a gun that looks like Mickey Mouse then 100% Disney would sue you if released in a commercial or non-commercial product.
The only fitting advice is if your game goes Angry Birds and makes millions hire a in house lawyer and head of f to the beach for some well earned R&R and let them worry about it. 
Disney are famously litigious in respect of their IP rights, though to be fair that case involved a prematurely released toy that they didn’t want in the public domain before the SW premiere.
Your advice seems sound 
With cars especially do not do this.
Ever wonder why the cars that look like Porsches in Gran Turismo aren’t manufactured by Porsche but by RUF? Because Porsche has some very specific and stringent requirements on the digital representation of its products.
There’s a legal nest you don’t want to get into there. Even if you’re giving away the product for free there’s still the potential that your work would be infringing. Just don’t go there.
Make something that looks somewhat like what you want to mimic and call it something else, like a Volta, or if you really want to play the cheeky satire angle, an Edison.
Similarly for weapons they at least own the trademark of their name and any associated wordmarks. The shape of the weapon may or may not be subject to the same sorts of protections depending on how unique it is. Again, you can go with something that looks very much like what you want to model, but call it something else, or something generic.
Otherwise yes please do contact the companies who own these things and get yourself an actual licence to use their trademarks and digital representations of their products.