Some legal thoughts on Take Two vs the BBC over Grand Theft Auto

News broke last week that Take Two, the rights holder to Grand Theft Auto (both as its publisher and as owner of Rockstar Games, its developer), will take legal action against the BBC in the UK over the BBC’s forthcoming TV drama Game Changer – which is all about the story of how Grand Theft Auto was made.  Sorry I’m coming a little late to the party (I was in Sweden speaking at Nordic Game Conference- see separate blog post coming about that).  Anyway, a few folks asked me what I think about this, so here we go.

A quick caveat before we start.

We only have a press release so far (see below), and even that is from one side to this dispute only.  We will know more if/when the court documents become public, but even then we will only know the position for sure once we get to trial.  As a result, we cannot yet draw any definite conclusions about this case.  In turn, that means we cannot yet meaningfully say anything about who has a ‘good’ or ‘better’ claim. I emphasise this because the games press does not always have much regard to that critically important point, I’m afraid.  What follows are some very initial ideas from me about what may be happening.

What did Take Two actually say in its press release?

Here it is in its entirety (via Eurogamer and IGN):

“Take-Two Interactive has filed suit against the BBC for trademark infringement based on their movie currently titled ‘Game Changer’ as it relates to Rockstar Games’ Grand Theft Auto video game series. 

“While holders of the trademarks referenced in the film title and its promotion, Rockstar Games has had no involvement with this project. Our goal is to ensure that our trademarks are not misused in the BBC’s pursuit of an unofficial depiction of purported events related to Rockstar Games. We have attempted multiple times to resolve this matter with the BBC without any meaningful resolution. It is our obligation to protect our intellectual property and unfortunately in this case litigation was necessary.”

What does this mean?

There’s quite a lot to unpack here.

Trademark infringement. This is what the press release suggests is the actual legal claim against the BBC.  Put very simply, trademark infringement is an argument that someone is trying to rip off my product by making it look like I made (or possibly supported) a rival product when actually I didn’t.  The test requires there to be similar or identical products or services, similar or identical identifiers (e.g. name, logo etc) to those products or services, plus a risk of public confusion between them.  For more information, see my guide to demystifying trademarks and games.

Again, we will no doubt hear more about this in due course, but at first blush this feels like it could be challenging (but not necessarily impossible) for Take Two.  It seems quite unlikely that anyone would think a BBC drama about a game is the same as the game itself and the BBC could relatively easily make it clear that the drama is unofficial and probably semi-fictionalised.  I’m not sure that the BBC using the names or logos of Take Two, Rockstar or Grand Theft Auto in that context would necessarily give rise to a basic trademark infringement action.  It’s possible though that, in all the complexities of UK trademark law, Take Two feels it has a wider trademark infringement claim, possibly involving claims of harm to their brands.  This seems supported by the press release’s line: “Our goal is to ensure that our trademarks are not misused in the BBC’s pursuit of an unofficial depiction of purported events related to Rockstar Games”. The court documents will provide greater clarity.

Take Two’s lack of involvement.  Take Two takes care to point out that it was not consulted regarding the drama so far.   At the same time, Take Two also says it has tried to discuss this with the BBC several times: “We have attempted multiple times to resolve this matter with the BBC without any meaningful resolution.” Again, until we see the court documents we won’t know the substance of what happened or the content of those discussions.

More generally, my experience is that often in situations where a new unofficial work (e.g. a newspaper feature, a film, a TV show) about a person or organisation is being created, the subject of the work will try to stop the work getting out at all and, failing that, would like to be consulted over it.  Given the creator of the new work very often does not want to can the project nor give the subject of the work a veto right, we often see legal disputes arising since a negotiated solution is so difficult (or even impossible).

How much does Take Two simply not want this BBC drama to exist at all, versus how much is it content for it to exist but with appropriate controls?  The press release seems to me to suggest it’s just about controls (“Our goal is to ensure that our trademarks are not misused in the BBC’s pursuit of an unofficial depiction of purported events related to Rockstar Games”), but it could be interpreted differently.  Given how strongly Take Two/Rockstar has attempted to control Grand Theft Auto to date (and who can blame them, GTA V alone just sold 52 million units), it wouldn’t be surprising if attempts were being/are being made to stop the drama entirely.

What else could Take Two claim? There are other legal claims that Take Two could advance potentially. Copyright infringement is one possibility, for example if the drama shows actual Grand Theft Auto works like early graphics or GTA games being played (possibly).  That would raise interesting questions about whether footage of a game being broadcast in a TV drama constitutes copyright infringement or not.  The BBC may well advance defences against such claims (possibly including a defence to copyright infringement for news and reporting reasons, or even for incidental inclusion and/or fair dealing).

Another possible claim is over the moral rights of the authors of the works (basically, in the UK and EU the author of a work has certain ‘moral rights’ to object to negative third party use of their work).  However, this is probably difficult because: (i) the claim would have to be made by the authors themselves (e.g. the Housers or other staff who worked on the GTA series); and (ii) as part of their contracts with Take Two those authors may well have had to waive those rights anyway.

What we WON’T likely see is a US-style rights of publicity or unfair competition type legal action (for more on rights of publicity, see as another recent example Activision v Manuel Noriega), since under UK law there are no US-style rights of publicity or unfair competition rights.  We could potentially see some kind of hybrid privacy+passing off action (first tried by Rihanna vs Topshop), we’ll have to wait and see.

What could Take Two accomplish from this legal action?

Again, it really depends on what it is setting out to achieve as expressed in the court documentation.  Depending on Take Two’s goals, in principle a successful legal action could lead to the drama simply not being broadcast at all.  I can see how a successful trademark infringement action could lead to this: if the BBC can’t actually use the names or logos of Take Two, Rockstar Games or Grand Theft Auto, what story is there to broadcast meaningfully? (Although NB it wasn’t actually Rockstar Games which originally made GTA 1, it was DMA Design – could that be relevant?)  Another potential outcome is that the drama goes ahead but cannot display any Grand Theft Auto copyright works – that could be a more viable scenario for the BBC, but still hardly ideal.  Or, of course, the BBC could win in which case the TV show would presumably go ahead.

What happens next?

It all depends on the current status of the lawsuit, or indeed if there is a lawsuit yet: just because there’s a press release, doesn’t mean there is a lawsuit YET.  Generally speaking with UK lawsuits, a claimant has to issue and serve on the defendant both a ‘Claim Form’ and a document called the ‘Particulars of Claim’, which together set out the actual legal claim being made by the claimant against the defendant.  At that point, the defendant has up to 28 days to respond with a detailed defence.  After that there’s various procedural steps but eventually you move on to disclosure of evidence, witness statements, expert evidence and ultimately to trial at some point (probably a year or more since the lawsuit started).

It’s possible that Take Two is seeking an injunction (i.e. a court order) against the BBC to stop or at least freeze the drama, which is a more ambitious legal strategy but much faster than the usual court process.  If that’s the case, I would expect there to be very considerable legal work ongoing right now between Take Two and the BBC, with a court hearing that could be in the very near future (the fastest injunction hearings, in the most time critical situations, can happen in a matter of hours or days, though that seems less likely here, so we could be 1-2 months or more before we hear more).

As always, watch this space…