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What was 3D Realms thinking with the Duke Nukem fiasco?

4:00 PM on 02.25.2014 // Brett Makedonski

Interceptor's not off the hook either

With this week’s news that Gearbox Software has filed a lawsuit against 3D Realms and Interceptor for unauthorized use of the Duke Nukem property, it raises the question – exactly what the hell are 3D Realms and Interceptor doing? The question is multifaceted, both in terms of legality and the current status of the Duke Nukem brand. Of course, there’s no clear answer, because everything they’re doing seems to be ill-advised.

Before we move on any further, it’s worth noting that the only information we have is what Gearbox outlined in its Complaint. Neither 3D Realms nor Interceptor has filed an Answer, meaning that we technically only have one side of the story. Everything is only alleged at this point, and nothing has been proven as fact. However, given the allegations raised by Gearbox, it’s hard to imagine a scenario where 3D Realms is justified in its actions.

The entire issue stems from a February 2, 2010 asset purchase agreement in which Gearbox bought the Duke Nukem IP from 3D Realms “except for very limited exceptions.” These exceptions are for the re-issuing of past games, such as the recent release of Duke Nukem 3D on Steam. Outside of that, Gearbox has the rights and control of the future direction of Duke Nukem.

Despite this contract being in place, Gearbox alleges that 3D Realms then went and licensed the franchise to Interceptor to create Duke Nukem: Mass Destruction. Gearbox is suing for, among other things, a permanent injunction to prevent this game from being released. It’s difficult to imagine Interceptor as anything more than an unknowing pawn in this entire ordeal -- a developer that thought it was making a legal deal because how should it know the company that was selling something didn’t actually own it?

That doesn’t explain the actions of 3D Realms, though. Given the details of the asset purchase agreement, it seems clear-cut that it had no right to make this deal. Did 3D Realms think it was being sneaky and that Gearbox would never find out? Because of the companies’ history of litigation, did it want to try to stick it to Gearbox any way it could, legal ramifications be damned? Is 3D Realms just that hard-up for money that it knowingly brokered an illegal contract to have some cash in the short-term?

Unless 3D Realms has a side of the story that’s wildly different than Gearbox’s, it looks like it simply put its middle finger in the air. Again, it’s all conjecture at this point, but how could these actions possibly be explained? This unsavory approach reeks of a developer that had one idea more than a decade ago and can’t move past it.

However, even if 3D Realms wanted to sell, why on earth did Interceptor want to buy? The Duke Nukem brand is not in good shape right now. After the throttling Duke Nukem Forever took, there might not be a worse IP to invest in right now. The entire “rude and crude” crutch that the series depends on has aged so poorly that it’s not viable for Duke Nukem to be a successful character in 2014.

The majority of the targeted audience for Duke Nuke can be broken up into two camps -- those that grew up with the franchise, and a younger crowd that reacts in kind to its trademark humor. The former has mostly matured beyond what Duke Nukem is willing to offer. That was clearly apparent given Duke Nukem Forever’s reception. The latter has absolutely no allegiance to the brand. They didn’t grow up with Duke Nukem, so the name rings evokes no sentimental emotions from them. There’s a sliver of people still fond of the franchise, but that group’s so small that it’s not feasible to market a large-scale game solely to them.

The wise thing for Interceptor to do would have been to create its own IP. That way, it would have been afforded the opportunity to mold a character and world that would have stood a chance right out the gate. Duke Nukem is absolute poison in 2014. It’s going to take a miraculous effort that vastly changes the series’ core tenets to make it relevant again. To boot, Interceptor wouldn’t have had to pay any licensing fees, as frivolous as they may have ended up being.

At the end of the day, it seems like Gearbox is going to come out of this one smelling like roses. Although, why didn’t it let Interceptor put out Mass Destruction and then sue for royalties? It surely would’ve been more simple to collect a check than to permanently prevent a game’s release. In the Complaint, Gearbox requests statutory damages as well as punitive damages -- the latter awarded for conduct that is found to be willful and wanton.

Gearbox is smart to take this approach, the reasoning being two-fold. First, assuming that it’s successful in its litigation, it’s less of a gamble to seek these damages than to try to take a percentage of what a game sells. No one knows how Mass Destruction could be received, and if it absolutely tanks (which is certainly within the realm of possibility), there might not be much money at all to draw from. Second, by obtaining the injunction, Gearbox gets to maintain full control over its property. Duke Nukem might not have much of a reputation right now, but you’d be hard-pressed to fault Gearbox for not wanting someone else to further screw that up.

If I were a betting man, I’d wager that Gearbox knows that neither of these two companies has the type of money to be able to satisfy any sort of judgment that’s awarded against them. With punitives in the mix, it has the potential to be very high. If this is the case, Gearbox is likely posturing itself to be able to obtain the work that’s already done on Mass Destruction in a sheriff’s sale -- similar to what Nintendo recently did. The saga of this game is probably far from over, and I’d be surprised if we don’t eventually see it released under Gearbox’s banner.

We’ll have to wait a while for the court proceedings to play out before we know what kind of resolution this ultimately has. The preliminary evidence all points in Gearbox’s favor, though. However, this could’ve all been avoided if 3D Realms and Interceptor hadn’t made such terrible decisions in the first place. Poor showing, guys.

Brett Makedonski, Associate Editor
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