We’ve had lawsuits over Fortnite dancing. We’ve had lawsuits over… weird stuff happening at Gearbox. There was that whole business with Bethesda and Fallout Shelter. The past few months have been wildly litigious in the gaming world, but this next one takes the cake. Now, Take-Two has initiated a legal battle with the actual, current Pinkerton company over how its past iteration has been portrayed in Red Dead Redemption 2.
This lawsuit is actually coming from Take-Two, but is a response to a cease and desist sent to the publisher from Pinkerton, which itself is now a subsidiary of security firm Securitas AB. The cease and desist was received in December 2018, and Take-Two filed suit in response via a complaint last week. The cease and desist order demands Take-Two either pay a sum or offer royalties, while Take-Two’s lawsuit argues the Pinkerton characters in the game are a case of fair use.
As part of Take-two’s argument, the publisher points to a portrayal of the Pinkerton National Detective Agency in many other works of fiction, including Deadwood, The Long Riders, and the aptly titled novels Pinkerton Detective Series. The argument here of course is that Pinkerton played an important role in American history, and as such use of the company in works of historical fiction are a matter of fair use.
Notably, Take-Two’s argument also includes a plea to the possible consequences of the suit:
“Particularly where there is no likelihood that consumers will be confused about the source of the creative work, trademark owners should not be permitted to use trademark law to harass authors, chill speech, and diminish the historical tenor of works like Red Dead 2. Historical fiction—television, movies, plays, books, and games—would suffer greatly if trademark claims like Defendants’ could even possibly succeed.”
Red Dead Redemption 2 Pinkerton Lawsuit Filed Arguing Fair Use