Gearbox Software, the studio behind the best-selling Borderlands franchise, is suing the parent company of 3D Realms, accusing the creator of the Duke Nukem franchise of breach of contract.
In a third-party complaint, filed Friday in the U.S. District Court for the Eastern District of Tennessee, Gearbox says Apogee Software (which owns 3D Realms) breached their 2009 contract by failing to deliver the Duke Nukem intellectual property “free and clear,” withholding details of a key agreement that impacts Gearbox’s ability to publish (and republish) the franchise’s titles. It’s also alleging 3D Realms has refused to honor an indemnity guarantee that was part of that deal.
In 2010, 3D Realms sold the Duke Nukem IP to Gearbox, with assurances there were no copyright infringements in the series. Last September, though, Robert (“Bobby”) Prince, a composer and sound designer whose music has appeared in several classic games, including Wolfenstein 3D and Doom, sued Gearbox, alleging he owned the copyright on certain music that was included in 2016’s Duke Nukem 3D: 20th Anniversary World Tour, a remaster of the game’s most seminal title.
“Prince … asserts that the use of Prince’s music in earlier Duke Nukem video games published by 3D Realms was subject to a license agreement between Prince and 3D Realms,” the suit alleges. “Thus, contrary to the representations and warranties made by 3D Realms in the [asset purchase agreement], Prince alleges that Gearbox does not own the rights to certain music transferred to Gearbox.”
In addition to Apogee, the suit names co-founders Scott Miller and George Broussard as defendants. Neither Miller nor Broussard replied to Digital Trends’ request for comment about the complaint.
Duke Nukem 3D World Tour was released in 2016 for the PlayStation 4, Xbox One and PC. Prince’s suit revolves around those titles. A Nintendo Switch version of the game is pending — and Gearbox says it has worked out an agreement with Prince on that game.
Randy Pitchford, CEO of Gearbox, told Digital Trends his studio was forced to file the action after 3D Realms denied Prince’s claims and rejected an indemnification request that would absolve Gearbox of all financial responsibility of the claims. He added that while he believes Prince’s claim to be valid, a court needs to be the final arbiter of that claim.
“We’re literally in the middle – either Bobby is right and deserves to be paid, in which case 3D Realms is wrong … or 3D Realms is right and Bobby’s wrong,” he says. “And we don’t know. So, we need to bring a judge in and have a look at things from both sides.”
The Gearbox complaint is seeking full recovery of any judgment awarded to Prince, along with attorneys’ fees and pre- and “post-judgment interest at the maximum lawful rate from the date of judgment until paid.” Neither Pitchford nor the filing put a dollar amount on those filings.
“Nothing about Duke Nukem is about profit at this point. It’s about goodwill,” says Pitchford.
A troubled history
The saga of Duke Nukem Forever is widely known in the gaming world. The game was originally announced in 1997 as a follow-up to Duke Nukem 3D, but numerous restarts resulted in a protracted development timetable. In 2009, 3D Realms laid off much of its staff and publisher Take-Two Interactive Software sued 3DR for its failure to finish the game. (Pitchford says that suit was for $15 million.)
While some of the 3DR team scattered and found other jobs, Allen Blum, who helped create Duke Nukem, worked with a handful of other former 3DR developers to keep Duke Nukem Forever moving forward. Pitchford, who got his start in the industry at 3D Realms, heard about this and approached Broussard and Miller to buy the IP.
The deal was signed in ceremonial fashion at Gearbox’s offices in 2009. In addition to the principals of 3DR and Gearbox, key members of the studio and any employee who had worked on the game at some point before joining Pitchford and company were on hand. In total, there were roughly 50 people in the room. When the paperwork was finished, Dom Pérignon was poured and Pitchford, Miller. and Broussard each addressed the group.
The first priority for Gearbox was settling the legal matter with Take-Two. Then there was the matter of assembling the game. What Gearbox inherited was, Pitchford said at the time, “a lot of great tech, a lot of great features and subsystems, a lot of great gameplay mechanics … but it wasn’t assembled into a game.”
He summed it up best by saying: “Ultimately, when I acquired the brand, I acquired the liability.”
When Duke Nukem Forever was released in 2011, it didn’t do well (critically or commercially) – and 3D Realms tried to sue Gearbox for unpaid royalties. Pitchford says the suit was withdrawn (and Miller apologized) after Gearbox showed 3D Realms the low sales numbers for the game – and pointed out that 3DR had sold them the game without a valid game engine license, which had added $1 million to the development costs.
The two companies butted heads again in 2014 when Interceptor Entertainment attempted to publish Duke Nukem: Mass Destruction. Gearbox sued 3DR and Interceptor, saying in its complaint: “Apparently, after selling its Duke Nukem IP rights to Gearbox in 2010, 3DR sought to privately convince others that the sale never happened. The result is the unauthorized development effort that reportedly exists between 3DR and Interceptor.”
Pitchford says that all came about just as Gearbox was in the process of finalizing a deal with a publisher for a new, big-budget Duke Nukem game of its own.
“We had a great concept and a great design and a publisher with a huge budget,” he says. “We were at that state where you’re moving back and forth. At that moment, a story pops up about a Dutch company doing a new Duke Nukem game. Scott had sold them a license to do the game. He sold these guys the Brooklyn bridge.”
The Gearbox game never materialized. Neither did Mass Destruction.
A worrisome future
Beyond World Tour, Gearbox has not done much with the Duke Nukem license since the release of Duke Nukem Forever nine years ago. But Pitchford’s revelation that the studio had plans for a revival several years ago is notable. And he acknowledges part of the mission of the 20th anniversary edition of the game is to “help the franchise find new life in the [current] world.”
That ties back to the complaint. The Prince suit raised Gearbox’s fears about other potential unknown problems surrounding the IP. Should there be more issues like this lurking in the shadows, it could impact future Duke Nukem titles.
“Bobby has showed us his contract with 3D Realms, and we know that if that contract is real, 3D Realms never showed it to us,” says Pitchford. “If that’s the case, it’s not unreasonable that there are other deals 3DR didn’t pass along to us.”
Gearbox, beyond protecting itself from Prince’s claim, wants to know about those. That’s part of the incentive for asking for interest payments (though they’re also likely a negotiating tool for a possible settlement).
“If 3D Realms is wrong here, they’re kind of shitheads,” says Pitchford. “Part of what the court is supposed to do is disincentivize shitheads.”
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