Take-Two Dismisses Its Lawsuit Against Pinkerton Agency As The Latter Runs From Its Own Cease And Desist

from the history-wins dept

At the very start of the year, we discussed a lawsuit filed by Take-Two Interactive against the Pinkerton Consulting & Investigations agency over content within the hit game Red Dead Redemption 2. Take-Two filed the suit seeking a declaratory judgement that its depiction of Pinkerton agents within the game was fair use, as Pinkerton had fired off a cease and desist notice to the game developer declaring that the game was violating its trademark rights and demanded either a lump sum payment or royalties as a result. Pinkerton, which most gamers will not know is a real-life union-busting, outlaw-getting agency that has existed since the west was still wild, probably thought Take-Two would pay it to go away. After all, the arguments for fair use and the First Amendment are quite clear when a work of fiction portrays a parody-take on an historically accurate and quite infamous agency of the wild west.

We said at the time that it was hard to see how a ruling by the court in favor of Pinkerton would do anything other than force artists to license history, which is about as clearly antithetical to First Amendment law as could be imagined. It seems that Pinkerton's lawyers agreed, as Take-Two announced it has dropped its suit as Pinkerton has agreed to withdraw its demands.

Take-Two and its subsidiary Rockstar filed the suit in January, striking back at a cease-and-desist notice from Pinkerton, which argued Red Dead Redemption 2 had infringed on its trademark. The publisher wanted a court to rule that its use of the Pinkerton name — as part of a game that emphasizes historical accuracy — was fair use. But GameDaily.biz notes that the suit was dropped today, apparently ending the dispute.

“Take-Two can confirm that the present-day Pinkerton Consulting and Investigation company has withdrawn its claims against Red Dead Redemption 2, and Take-Two will not continue legal action against Pinkerton. Red Dead Redemption 2 is a work of fiction set in the late 1800s that references historical entities active during that time,” a spokesperson for Take-Two told The Verge.

Perhaps the most surprising aspect of all of this is that it took four months to get here. Any sober look at the claims by both parties in court would have resulted in a win by Take-Two. What's the alternative? Movie makers paying the Abraham Lincoln estate to make Lincoln? The White Sox demanding a license over the portrayal of the franchise in Eight Men Out? That isn't how art is supposed to interact with history.

As always, despite the happy ending to this specific case, the real enemy in all of this is the pervasive culture of ownership that causes the Pinkertons of the world to think they can control speech and content.

Filed Under: cease and desist, pinkertons, red dead redemption 2, trademark
Companies: pinkerton, take-two interactive

Infamous Pinkerton Detectives Claim Red Dead Redemption's Use Of Historically Accurate Pinkertons Is Trademark Infringement

from the seeing-red dept

Take 2 Interactive is no stranger to fighting bogus complaints about "infringement" concerning how it represents characters in its various games. Most of these fights have been over its flagship franchise, the Grand Theft Auto series, where the developer often enjoys poking fun at pop culture and society through settings and characters that are an amalgam of several stereotyped individuals. This has resulted in entitled celebrities and property owners attempting to sue over trademark and publicity rights in the past, with Take 2 typically coming out victorious by pointing out that its work is that of parody and covered by fair use.

This is now happening with a different game but the basic story remains the same. In this case we have the added insanity of a rather infamous company trying to profit off of its infamous history. Pinkerton Consulting & Investigations sent a cease and desist notice to Take 2 after Red Dead Redemption 2 was released due to the game including characters who were a part of the company during ye olde olden times. In response, Take 2 filed suit.

Pinkerton sent Take-Two Interactive a cease-and-desist letter over the characters of Andrew Milton and Edgar Ross, a pair of Pinkerton agents and major antagonists in the game. Now, Take-Two is suing to have the characters declared fair use, arguing that they’re part of Red Dead Redemption 2’s detailed historical setting.

Pinkerton Consulting & Investigations (now a subsidiary of security firm Securitas AB) delivered its cease-and-desist order in December, roughly two months after Red Dead Redemption 2’s release. It commended game development studio Rockstar’s “clear affection” for Pinkerton, but claimed it was trading on the “goodwill” associated with the company’s trademarks, creating a false impression that the game was made by or connected with Pinkerton. The order demands that Take-Two pay either a lump sum or ongoing royalties. But Take-Two contends that Red Dead Redemption 2 — which the lawsuit describes as a “gripping Wild West adventure” and “essentially an interactive film” — is protected by the First Amendment.

Okay, so a lot to get into here. First and foremost, including Pinkerton in a story about the old west absolutely is an obvious aim at being historically accurate. I didn't realize it until reading this story, but the Pinkerton operation around today is the same Pinkerton organization that has a sordid history working with both government and industry specifically to infiltrate, investigate, and ultimately stop the spread of labor unions, while encouraging strikebreaking. The infamous Pinkerton agency goes all the way back to the 1800s and was somewhat notorious for its tactics. The company also was very much involved in investigating and tracking down notorious outlaws such as Jesse James, Butch Cassidy, and the Sundance Kid. All of this, of course, makes their appearance in an old west outlaw game perfectly reasonable fodder.

Take 2 notes all of this in its declaratory judgment suit, along with mentioning all of the other cultural media that includes references to Pinkerton in stories about the old west.

Take-Two notes that the Pinkerton National Detective Agency is referenced in plenty of other Western fiction, and that the agency played a major role in real 19th- and early 20th-century American history. (It was not, however, the inspiration for the Weezer album Pinkerton.) Among other places, Pinkerton agents appear in the 2000s-era TV series Deadwood; the 1980 film The Long Riders; and the 2010 game BioShock Infinite, where the protagonist is a former Pinkerton agent.

Yet, when it comes to the wildly successful game Take 2 released, Pinkerton suddenly wants to lean on trademark law as a way to profit over a historical reality. This is absurd on many levels, including that the use by Take 2 -- much like with its GTA series -- is obviously fair use. On top of that, Pinkerton's claim in its C&D that the public is going to somehow be confused into thinking that Red Dead is the product of, affiliated with, or approved by Pinkerton is laughable at best. I would posit that most people playing the game likely won't know that Pinkerton is a real company, whereas those that do will see it as the inclusion of historical characters that are prevalent throughout the game.

In response to the lawsuit, the Pinkerton folks claim that part of their complaint is that this is a historically inaccurate picture of the Pinkertons, and that it's harming their good will. Given the existing reputation of the Pinkertons from back in the day, it's difficult to see how there is much good will to harm here in the first place, and litigating the reputation of the Pinkertons from the 1800s in the old west doesn't seem like a productive use of anyone's time.

We'll see how the court decides this, but it's quite difficult to imagine works of art having to license history in the way Pinkerton has suggested Take 2 should.

Filed Under: fair use, history, licensing, nominative fair use, pinkertons, red dead redemption 2, trademark
Companies: pinkerton, pinkerton consulting and investigations, rockstar games, securitas ab, take 2 interactive