Why It’s So Hard to Stop Marketing Guns in Video Games

Video-game guns are so similar to real guns that comparing the two has spawned its own YouTube micro-genre. Fans of the most popular first-person shooter games—Fortnite, Apex Legends, Call of Duty, PlayerUnknown’s Battlegrounds—have created dozens of “guns in real life” videos, dedicated to explaining all the similarities between real guns and their virtual counterparts: their weight, their rate of fire, the physical stamina needed to carry and fire them in real life, and their efficacy in each corresponding game. Brownells, a real-world gun and gun-accessory manufacturer, has done the same.

Nonetheless, gaming companies are desperate to separate themselves from the idea—spread by almost every president since Columbine—that they have a role in causing gun violence. Even to those who generally accept the growing corpus of studies disproving a causal link, the optics are undeniably grim. As Constance Steinkuehler, the Barack Obama–era White House legal adviser on video games, said after Sandy Hook: “Video games are not a gun-violence problem. But video games do have a PR problem.”

Over the past half decade, gaming companies have worked diligently behind the scenes to fix this PR problem, supported by legal rulings and clever loopholes that have effectively freed the industry from some of the more troubling and explicit marketing ties between guns and games.

For decades, game companies entered into long-lasting and mutually beneficial licensing deals with gun manufacturers. If a game wanted to use a recognizable, trademarked design or a brand name of gun, it would need permission. The same was true for vehicles, recognizable landmarks, or other kinds of weapons.

A single game could have hundreds of such licenses, one lawyer whose firm offers legal counsel to video-game companies told me. (The lawyer requested anonymity because of worries that speaking publicly would jeopardize business relationships.) In exchange for the use of their intellectual property, manufacturers would stipulate that the weapons in the games be portrayed realistically and positively. Money rarely changed hands, but the relationship was symbiotic: Game companies got verisimilitude from featuring trademarked guns; gun manufacturers got easy, free exposure, on their terms.

But then two events changed the tenor of that relationship, at least on the surface.

The first was a landmark 2011 Supreme Court ruling, Brown v. Entertainment Merchants Association. The Court struck down a California law banning stores from selling violent video games to minors without an adult present. It effectively granted video games new legal standing as bona fide artistic expressions, with similar legal privileges to movies, TV, and books, which, generally speaking, do not need to license products in order to depict them. Justice Antonin Scalia wrote the opinion, finding that “California’s claim that ‘interactive’ video games present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive.”

The second was Sandy Hook. In the weeks after the shooting, then–Vice President Joe Biden met with the game developers behind first-person shooters such as Call of Duty and Medal of Honor to discuss how to move forward after the attack. The Entertainment Merchants Association cautioned against renewed research efforts into whether games caused gun violence—that matter had long been settled. “Additional studies will research the same conclusions as the multitude of previous studies,” the EMA’s interim president, Mark Fisher, wrote in a letter to Biden. Biden briefly floated a tax on violent games, with proceeds going to gun-violence victims. The gaming press condemned the idea, but it showed that Biden was grasping for hard proof of change in the industry.

In 2013, some semblance of that hard proof finally arrived. When reports of the licensing deals between gun makers and gaming companies resurfaced that year, Electronic Arts (EA), which developed the Medal of Honor series, announced that it would no longer pursue licensing deals with gun manufacturers. (The Medal of Honor series, set during World War II, is itself a licensed adaption of Steven Spielberg’s Saving Private Ryan.) To be clear, it still planned to use the recognizable guns its fan base was used to. It was simply asserting a First Amendment right to use trademarked weapons without the burden of licensing deals.

“We’re telling a story and we have a point of view,” said Frank Gibeau, then EA’s president of labels, in a 2013 interview with Reuters. “A book doesn’t pay for saying the word Colt.”

Legal experts repeated similar comparisons in conversations with me: Imagine if a book had to license references to Porsche, or the Beatles, or the Statue of Liberty. Imagine if TV shows had to license every onscreen iPhone or can of Coke. Companies have the right to protect their trademarks, but when courts granted games First Amendment protections, they gained new legal standing. As long as they didn’t mislead consumers into thinking that the manufacturers sponsored the game, they were free to fully represent their fictional worlds and stories as they imagined them.

Since 2013, most producers of first-person shooter games have followed EA’s lead in eschewing licensing deals. Last week, I reached out to the companies behind the biggest shooting games in the industry: Activision, EA, Take-Two Interactive, Rebellion, Bethesda Game Studios, PUBG, Epic Games, and Avalanche Studios. EA, Rebellion (the maker of the Battlezone series), and Take-Two Interactive (which owns Rockstar Games, the maker of the Grand Theft Auto series) confirmed that none of the weapons in their games was under a licensing deal. The others didn’t respond to requests for comment.

Since the 2011 ruling, trademark cases against video-game companies have mostly been about vehicles, such as helicopters and brand-name Humvees. Two legal experts told me that they were unaware of any case in which a gun manufacturer filed suit against a gaming company since EA’s 2013 position, even if trademarked weapons were used.

“When it comes to balancing trademark and First Amendment, your use is probably okay unless [it] had no artistic relevance or [it] was deliberately misleading,” says Steve Chang, a trademark expert and adjunct professor at Georgetown Law.

Guns are often relevant to the settings of many games and, indeed, key to their stories. As Chang notes, this artistic relevance creates freedom. These days, unlicensed, recognizable portrayals of guns in games look, from the outside, the same as they did in the days of marketing deals: The guns look real and shoot well. To players, there’s almost no difference.

Ending licensing deals with gun makers is less substantive than it appears, argues Ross Dannenberg, a lawyer and the author of The American Bar Association’s Legal Guide to Video Game Development. Licensing agreements protect game companies from being sued for trademark infringement—a threat that the 2011 change to their status effectively neutralized. Legally speaking, depicting a gun in a game is no different than depicting a spatula. But gaming companies want to create the idea that guns are legally distinct.

“Some game companies have a policy of saying, ‘We’re not licensing guns,’” Dannenberg says. “The companies have made it seem like there’s a difference. The only reason they say that about guns is, they don’t want to be found guilty in the court of public opinion of endorsing the gun industry.”

Still, severing marketing ties hasn’t moved the needle on the prominence of guns in games.

Another lawyer familiar with the development and consultation process, who requested anonymity because he wasn’t authorized to speak on the record, explained that gaming companies still work directly with trademarked material. The legal-review process is eerily similar to the one portrayed in guns-in-real-life YouTube videos. Game companies submit virtual guns to intellectual-property lawyers, either internally or at outside firms. Lawyers view images of real guns and how altered versions will appear in the game, recommending changes so that guns are recognizable but don’t meet the standard for infringement.

There’s almost no way for shooting games not to endorse guns through flattering portrayals, especially if gamers themselves are the ones mining that connection. While 2011 marked a major legal shift, game companies have distanced themselves in name but not effect.