Gearbox sues 3D Realms over new Duke Nukem game

Business

February 25, 2014

Earlier this month a teaser site caught the eye of Duke Nukem fans – alloutofgum.com – and it turned out to herald a new Duke Nukem game dubbed Mass Destruction involving Interceptor Games and 3D Realms. The game is described as an “isometric action role-playing game for PC and PlayStation 4”.

The site featured a countdown timer that would have ended this week, but that didn’t last long, because Gearbox is suing 3D Realms. Gearbox came to own the Duke Nukem IP during their dismal rescue attempt of Duke Nukem Forever.

Some highlights from the complaint letter:

By attempting to license the unlicensable, assign the unassignable, and effectively re-sell the exclusive rights that Gearbox already purchased in 2010, 3DR breached the terms of its APA with Gearbox, as well as Gearbox’s exclusive, federally-protected intellectual property rights.

“No good deed goes unpunished.” 3DR’s actions illustrate the point, given the exceptional amount of support that Gearbox extended to 3DR, its ownership, and the Duke Nukem franchise that Gearbox must protect.

It is worth remembering: Prior to Gearbox’s involvement, 3DR languished for over twelve unsuccessful years trying to get the Duke Nukem Forever (“DNF”) videogame off the ground, and was famously incapable of achieving its goal. As a result of its own failings, 3DR ultimately found itself mired in protracted litigation with its publisher, Take-Two Interactive Software, Inc. (“Take 2”). Indeed, by 2009, Take 2 was asserting its own claims against 3DR (e.g., for repayment of funds owed to Take 2, for delivery of a DNF videogame and related source code, etc.). As of 2010, 3DR’s problems were increasing, not decreasing.

Desperate for help—and on the verge of even further ruin, now that 3DR could no longer fund either development or litigation—3DR effectively asked its friends at Gearbox for a life preserver. Specifically, 3DR asked Gearbox to rescue 3DR from the Take 2 litigation and, if possible, to complete the technological jigsaw puzzle of a videogame that 3DR had been calling DNF. Because Gearbox had personal ties to 3DR, Take 2, and its fellow Duke Nukem fans, Gearbox agreed to help.

Gearbox’s bailout package for 3DR was memorialized in a February 2010 Asset Purchase Agreement (“APA”), wherein Gearbox acquired the Duke Nukem intellectual property rights (the “Duke IP”). Gearbox soon discovered that 3DR’s work product was sorely deficient; the mountain of problems subsequently uncovered by Gearbox cannot be captured in this single pleading.

Undeterred, Gearbox kept its part of the bargain in support of 3DR, Duke and their exceptionally patient fans: In June of 2011, while 3DR quietly enjoyed freedom from its crushing debts and litigation with Take 2, Gearbox delivered the videogame to those DNF fans who had patiently waited over a dozen years for 3DR’s delivery of its product.

As it turns out, 3DR was the ultimate beneficiary of its so-called “deal among friends.” After all: 3DR was freed from the litigation it could no longer afford to fight, 3DR’s principals received a generous financial guarantee, and DNF was finally shipped. None of this was likely to occur in the absence of Gearbox’s prompt, generous support. And, for those disappointed by the DNF content that 3DR bungled between 1997-2009, 3DR’s misery now had the company of its rescuer, Gearbox.