How Call of Duty May Have Finally Proven Video Games Are Art

May 13, 2020

Whether video games are capital-A “Art” or just mindless entertainment has been a subject of debate for many years. Now, that debate has been settled in a court of law. And you’ll never believe the game that did it!

Call of Duty has basically been declared a work of art in a recent U.S. district court ruling. A federal judge ruled that Activision Blizzard did not infringe on trademarks for featuring Humvees in Call of Duty, because they were part of the game’s “artistic expression.” Thus, Call of Duty’s use of Humvees was protected under the First Amendment.

And despite how you may feel about that monolithic company and their endless shooter iterations, this is big. CoD’s artistic status is going to benefit the entire gaming industry.

Don’t believe it? Let’s do a deep dive into this classic debate, the legal verdict, and the future of video games.

The classic debate: are video games art?

In many ways, the debate about whether video games are art or not has been raging for as long as games have been around. And some pretty important cultural critics have weighed in on the matter.

The late, great movie critic Roger Ebert once declared that “video games can never be art.” And he doubled down on this statement back in 2010, despite having years of fans trying to convince him to change his mind. And he was even bold enough to declare “no video gamer now living will survive long enough to experience the medium as an art form.”

In the eyes of the law, this is no longer true. But what was Ebert’s (and by extension hundreds of other critics’) beef with games as art? To him, “art” as a label is automatically comparative. If games were art, he believed we’d need to have a single game that could stand up to other works of art. We’d need a game as good as the finest painting, the most moving movie, or the most engaging novel.

In 2010, Ebert thought no such game existed, and I’m pretty confident that Call of Duty would not have changed his mind. Nonetheless, that game is now our artistic trailblazer.

Early culture war victories

Obviously, Ebert’s notion of art isn’t the same as yours, mine, or anyone else’s. And well before the recent legal ruling, the “video games as art” proponents scored some major victories.

For example, starting in 2011, the National Endowment for the Arts began offering grants to aspiring gamemakers. These are part of their “Arts in Media” grants, putting games alongside film, TV, and radio.

Furthermore, there are multiple gaming museums and other preservation efforts to help us hold onto and study video game history. You can even find prominent video games in the Museum of Modern Art, where games like Pac-Man rub elbows with famous paintings like Starry Night.

The case against Activision Blizzard

The beginning of the case was straightforward, though the actual lawsuit was pretty unexpected. It all kicked off when AM General, maker of the Humvee, decided to sue Activision-Blizzard for the use of those vehicles.

AM General also claimed concerns about the perception of licensing, saying that gamers who saw the Humvee in these games may think the games got licensed by AM General. Fortunately for gamers everywhere, the judge was not impressed with this argument.

Ultimately, U.S. District Court Judge George B. Daniels ruled against AM General on March 31, 2020. But he went the extra mile and effectively created a new chapter in video game history.

He wrote in his decision, “If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal.” Furthermore, he found that developers included Humvees as an “artistic expression rather than a willful attempt to garnish the trademark owner’s goodwill for profit.”

Part of what fueled the judge’s verdict is, in my humble opinion, common sense. He decided that AM General and Activision Blizzard were such different companies creating such different products that there shouldn’t be much confusion over licensing.

And while CoD had some deep pockets to rely on during this lawsuit, the verdict may help countless indie companies.

The power of precedent

Of course, this isn’t the first major ruling to basically declare video games as art.

In 2011, the Supreme Court blocked California from banning the sale of violent video game to minors. In their decision, they compared video games to other works of art protected under the First Amendment.

“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Justice Antonin Scalia wrote in the court’s decision. “That suffices to confer First Amendment protection.”

The landmark Supreme Court ruling gave the “games as art” argument a legal precedence established in the highest court in the land. That means it will be that much harder to challenge this notion in court.

Furthermore, the recent ruling in New York might embolden companies of all sizes to pursue more content in the name of realism and artistic expression than they could pursue before.

Best case? We’ll get some groundbreaking games that test the boundaries of what we consider art. Worst case? At least all the cars you see in games will be more realistic than ever!

Call of Duty walked so they could run

The precedent of New York’s legal decision will be the real legacy of this case, and possibly even the real legacy of the Call of Duty franchise.

It probably wouldn’t have been the end of the world if Activision had to swap out Humvees for something more generic. The games would still look and play mostly the same. But thanks to this verdict, we know that even the biggest game companies are free to operate with artistic license.

And that may make all the difference in the world to smaller companies that could never take a company like AM General to court. Give it a decade or two, and we may look back and understand one thing clearly. CoD walked so these future games could run!

The culture war continues

Roger Ebert went to his grave believing video games could never be art. And he did so despite seeing organizations like the Museum of Modern Art and the National Endowment for the Arts embrace games as an art form.

If Ebert is anything to go by, you can bet that this legal verdict isn’t going to magically change everyone’s mind. This legal battle may be over, but the larger cultural war over games as art continues.

Fortunately, games (and gamers) are going to win this war. If gaming has come this far in the 10 years since Ebert doubled down that “games can never be art,” just imagine how far we’ll go in the next 10 years!

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