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 per se necessary to license 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. Just like you don't need to license every car on the road every time you take a picture of said road.

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.

Military vehicles enjoy less protection than civilian ones. The works of the US Federal Government, for one, are not copyrightable. The design of military vehicles is also a lot more functional rather than artistic.

To claim copyright protection for a vehicle design, one would have to prove that the design wasn't driven by function - which is something military contractors for large projects definitely aren't hired to do. A carrier's or SSBN's shape, for instance, isn't copyrighted at all, because it's necessary for their performance.

However, there are elements of real-world objects that would be protected by copyright against depiction in games. An accurate and detailed depiction of non-functional elements can be a copyright violation. Cases have been brought against artist tattoos on human models. A complex vinyl decal on a car can also be copyright-protected against depictions, but only to the extent that its depiction isn't necessary to keep the vehicle recognizable.

For a big studio, licensing the vehicles can be simpler and cheaper than risking a need for a potential legal defense. It can also provide help from the manufacturer in recreating a detailed design, such as drawings and 3D models. But it is not strictly necessary.