When does a retail flight simulator, or racing game, need to license aircraft or vehicles from their manufacturers?

Question

Supposing someone (whether an individual, small company like an indie game studio, or large game publisher with an established legal department (EA, Microsoft, etc)) wants to make a flight simulator product - or generic car racing game - featuring aircraft or vehicles from real-life (say, a Boeing 737 in a flight-sim, or Ford Focus in a rally-racing game)…

• Is it always required to obtain a license to use the aircraft/vehicle maker’s trademarks, even when used strictly nominatively, with attribution?
  • My understanding is that nominative use does not require a license.
• …and to model an in-game/in-sim vehicle based on a real-life vehicle’s technical performance statistics? (But not necessarily its visual appearance or aesthetic likeness)
  • My understanding is that technical specifications and performance/handling statistics are not “protected” by any IP law (besides database-rights, which don’t apply in this case).
• …and to have a recreation of a vehicle’s visual appearance or aesthetic design?

  • My understanding is that in most cases this is required because the design of a car is copyrighted - but this doesn’t seem to be uniformly applicable in all situations: obviously the devs/publishers of Gran Turismo are going to license car designs from Ferrari and Porsche, but e.g. in games built on parody or satire, that such a license likely wouldn’t ever be given - but isn’t necessary due to legal protections for satire. But where is the line drawn between irreverence and satire? Why or when should the law distinguish between those types of games?

  • What about military aircraft in flight simulators? There are plenty of serious, non-satire, games and simulators using the names, likeness, and specifications of dozens or more real-world aircraft, including aircraft for which are probably un-licensable due to their classified nature (such as the comprehensive set of enemy aircraft in EF 2000 and other flight sims from the early 1990s when formerly-Soviet aircraft makers were simply too culturally detached from western game-makers, assuming they could even be contacted at all, or even had legal departments concerned with media IP rights at all).

  • …and what about megaprojects like 80,000+ tonne aircraft carriers or SSBNs that don’t have a single contractor or conceivably any copyright over their overall aesthetic design?

Answer 1

It is not necessary to license most objects depicted in a video game. A 2020 court case has decided that the same rules apply to video games as to other forms of art. You don't need to license every car on the road, every building on the street, every time you take a picture.

Most court cases that are brought against non-licensed use of vehicles claim something other than simple use of the design, such as false implication of license, or use of a trademark. Placing a particular car make on the cover of a game is much more of a legal issue than just having it in-game.

To claim copyright protection for a vehicle design, one has to show that the design is artistic, driven by form over function. Decals and custom paint jobs are clearly artistic and protected. The car maker's logo is too, but a logo on a model is a necessary part of a vehicle's depiction; on the other hand, placing it on the cover is not.

Consumer cars are in between. Their design is a mix of functional and artistic elements. It will usually be protected by a design patent, preventing other makers from copying it (unless they're in China and above the law). But design patents have a narrower scope than copyright - Warhol's paintings of Coke bottles didn't require a license from Coke, but photos of these paintings are covered by his copyright. There could be a point to argue here, but it's quite weak, unless decals and decorations are included in the copy.

Military vehicles are pretty much free-for-all. The design of military gear is clearly functional, necessary for its performance, and hard to argue for being artistic, which makes copyright claims unlikely to succeed. In the US, the works of the Federal Government are in public domain, which doesn't cover all the contractors, but creates a large body of PD works that can be used as basis for reproduction.

That said, while reproducing life in art is generally legal, accurate and detailed depictions of decorative elements of real-life objects are a copyright matter. Cases have been brought against artist tattoos on human models. A complex vinyl decal on a car will also be copyright-protected, and can only be copied to the extent necessary to keep the model recognizable. Such extent is very limited, like keeping the general colors and shape, and will generally not be pretty enough for an AAA racing game.

So big studios make deals with car makers to license their vehicles. That avoids any legal debates, allows them wide use of trademarks and logos, and can provide help from the manufacturer in recreating a detailed design, such as drawings, 3D models, and high-res textures. But it is a custom and a convenience, not a legal requirement.