Bethesda has failed in an attempt to obtain an interim injunction against Mojang over its use of thephrase ‘Scrolls’ in its forthcoming eponymous game (via Gamesindustry.biz and tweets from Notch). But previous lawsuit experience from Bethesda suggests the battle *may* not be over…
“Fallout® is a registered trademark of Bethesda Softworks LLC, a ZeniMax Media company, in the U.S. and/or other countries, and is used by Interplay under license from Bethesda Softworks LLC. All Rights Reserved.”
Which suggests ofc that perhaps Bethesda and Interplay are cooperating over Fallout Online after all…which made me wonder if maybe there had been a handshake and the lawsuit had quietly been settled?
(1) Bethesda is continuing to argue that it owns all the IP rights in the Fallout series.
(2) Bethesda is now also arguing it gave Interplay rights over only the Fallout trademark and nothing else. In other words, Bethesda argues that Interplay has no rights over any other Fallout IP, including for example artwork artwork (e.g. weapon art) or game concepts (e.g. the (in)famous “PIP Boy”), all of which Bethesda says it purchased from Interplay in 2007.
The practical effect of that argument (if successful) is that it would make it extremely difficult for Interplay to use much of the previous Fallout games in Fallout Online at all, which would be both a creative and commercial headache for Interplay. Example off the top of my head: Interplay couldn’t, for example, just import Megaton (either nuked or not nuked, natch) into Fallout Online, at least as it is shown in Fallout 3 anyway.
(3) Bethesda is also apparently taking other steps to make life difficult for Interplay, including demanding that Interplay provides it with access to its internal Fallout Online design document wiki as part of the litigation (which Interplay is refusing on the basis that it contains trade secrets).
Drawing all the above together, I think this is what has happened:
- The reference to Bethesda on the Fallout Online beta sign-up site does not mean that there has been any deal between Bethesda and Interplay. We know this now because the litigation is ongoing: Interplay and Bethesda cooperating over Fallout Online would only make sense if they had settled the lawsuit.
- IF that’s right, then Interplay has taken advantage of Bethesda’s setbacks in the litigation by forging ahead with Fallout Online as a solo project.
- And, IF that’s also right, then Interplay is running a serious gamble that it will win the lawsuit and therefore be able to release Fallout Online itself…
- …BECAUSE, if Bethesda wins the lawsuit it would in principle have the ability either to shut Fallout Online down or to demand that it be transferred to Bethesda’s ownership.
- It would also mean that Bethesda has uncontested control over the Fallout IP in the future.
I can see the commercial benefits of what Interplay is trying to do (if in fact I’m right on the above): get the game as far developed as possible, both as a bargaining chip with Bethesda in any negotiations and because, if Interplay wins, it already has a game ready to go. On top of that, the Interplay Fallout MMO is now probably regarded by fans, gamers and the games industry as the Fallout MMO regardless of this lawsuit – so Interplay has won the PR contest there. So it seems like a smart move in those respects…if it wasn’t for the legal risk that it could all be taken away from them.
I’ve discussed on this blog several times previously the lawsuit between Interplay and Bethesda with the future of the Fallout IP (including Interplay’s Fallout MMO project) at stake. So far, there has been no publicised resolution of that dispute. So, either:
(1) Interplay is forging ahead with its MMO project despite the litigation – which could be risky if the lawsuit goes against Interplay (though it may be that Interplay was emboldened by Bethesda’s failure to obtain a preliminary injunction barring Interplay from using the Fallout IP pending resolution of the lawsuit); OR
(2) There has been an unpublicised settlement enabling Interplay to go ahead with its MMO (though one would imagine Bethesda would fight hard for Fallout MMO rights, given the value of that IP).
So what has happened?
(Image credit: Wikimedia)
To recap, Interplay sold the Fallout IP to Bethesda in 2007 having retained certain rights, including the rights to develop a Fallout MMO. Bethesda has now commenced this (US) lawsuit arguing that Interplay is in breach of that agreement and has infringed Bethesdra’s trademark rights in the Fallout series. In particular, it seems that Bethesda is angry that Interplay sold the Fallout 1 and 2 games and expansions as a ‘Fallout trilogy’ at around the same time that Bethesda released Fallout 3.
The position now seems to be (courtesy of Game Politics) that Interplay has counterclaimed for Bethesda’s repudiatory breach of their agreement, apparently to the extent of claiming that the Fallout IP has reverted to Interplay and Bethesda now sub-licences the IP from Interplay (a complete reversal of the current position).
It’s worth taking all of this with a heavy dose of salt since (as far as we are aware) the relevant court documents have not yet been published on the net and therefore there is no way of being sure of the accuracy of any of this (unless one of Interplay or Bethesda make a press statement on this anytime soon).
That said, defending an action against you for breach of an agreement by counterclaiming yourself for breach of the same agreement is a standard litigation tactic, which it seems clear Interplay has decided to adopt in this case. Of course, the devil is in the detail: in order to substantiate a claim for breach of contract Interplay’s lawyers will need to set out in detail how the contract operated and exactly which provisions of that contract have been breached by Bethesda.
Of course, the main question from all this is what will eventually happen to the Fallout IP. If Game Politic’s report is accurate, then Interplay is not just arguing for damages for breach of contract, but a version of the Fallout IP back to it in some way – which is by no means impossible in theory, but it will be interesting to see how they play that argument out. Keep watching this space…
Bethesda has commenced Court proceedings in the USA against Interplay over the Fallout series of games (story first covered by Gamasutra).
The facts seems to be: Interplay sold the Fallout IP to Bethesda in 2007, as part of which they agreed that Interplay would retain certain license rights, including the right to develop a Fallout MMO. Bethesda now alleges that Interplay is in breach of that agreement and has infringed Bethesdra’s trademark rights in the Fallout series.
So, a straightforward piece of commercial and IP litigation then, which is likely to be of interest to the industry, given Bethesda’s current (and Interplay’s historic) importance as publishers, but also of interest to gamers at large for the impact it may have on Fallout itself. In particular, if this case continues there will eventually have to be disclosure about what exactly Interplay has been doing (or should have been doing) with the Fallout MMO.
In the meantime, a spirited discussion is fully underway at Gamasutra. One really very interesting point which has already emerged from that discussion is the potential PR impact of all this – does this claim risk Bethesda alienating its customerbase, even if legally the Court eventually rules in its favour? This is of course always an issue when a high-profile company decides whether to bring high-profile litigation and no doubt Bethesda will have carefully weighed up its option before deciding to act. Either way, we will be keeping an eye on this one…