Lawsuit Seeks To Stop New Duke Nukem Game Teased By Original Studio

Lawsuit Seeks to Stop New Duke Nukem Game Teased by Original Studio

The studio that spent 12 years unable to finish Duke Nukem Forever and the one that finally did in 2011 are back in court again, this time over a Duke Nukem game for PC and PlayStation that was teased earlier this month.

Gearbox Software, which in 2010 acquired Duke Nukem and the rights to it from its creator, 3D Realms, is suing 3D Realms over something called Duke Nukem: Mass Destruction, which came to light earlier this month in a teaser site that quickly disappeared but has since returned. Gearbox's suit says the game was being made, without its knowledge or permission, by 3D Realms and was to be published by Interceptor Entertainment, a Danish firm also named in the filing.

"Apparently, after selling its Duke Nukem IP rights to Gearbox in 2010, [3D Realms] sought to privately convince others that the sale never happened," the lawsuit alleges. It says 3D Realms and Interceptor "colluded to misappropriate and make infringing use of the Duke Nukem trademarks and copyrights owned by Gearbox," an acquisition the lawsuit goes to great lengths to describe as a favour to the beleaguered 3D Realms "famously incapable" of delivering Duke Nukem Forever even after 12 years of development.

Gearbox notes that its acquisition of Duke Nukem in 2010, which entitles it to all future development of anything using its name or characters, bailed 3D Realms out of a situation in which publisher Take-Two Interactive was suing to recover the money it had put into Duke Nukem Forever's development. The filing openly insults 3D Realms' work on Duke Nukem Forever, saying the game code Gearbox acquired was "sorely deficient," also describing it as "a technological jigsaw puzzle of a video game.

"The mountain of problems subsequently uncovered by Gearbox cannot be captured in this single pleading."

Gearbox is seeking the full span of damages, including punitive (as well as "exemplary" damages, another type of punishment), and a judge's order to stop Mass Destruction from ever releasing. Gearbox's lawsuit says the game was due to launch on Feb. 25, however, that was only the date a countdown timer at AllOutofGum.com was set to expire. Its actual release date was never said.

This is not the first time these two sides have gone to court; 3D Realms sued Gearbox last year, alleging it was owed $US2 million in royalties and advances Gearbox had received for finishing the game. The suit was later dropped with a profuse apology by 3D Realms co-founder Scott Miller, a statement that, notably, was circulated to the press by Gearbox.

Incredibly, admissions and apologies from 3D Realms already feature in this latest lawsuit. Gearbox's filing includes a declaration, signed by both Miller and co-founder George Broussard, in which they acknowledge Gearbox's exclusive ownership of Duke Nukem and that Mass Destruction violates the rights they sold to Gearbox in 2010. "I apologise to Gearbox for the infringement and breach represented by my efforts," reads the declaration, dated Feb. 16.

"I acknowledge that 3DR's actions, which were taken at 3DR's behest, constitute a material breach of the Duke IP terms that cause irreparable harm to Gearbox and its Duke IP rights," the statement says. "By wilfully and materially breaching the [asset purchase agreement] and related Duke IP Terms, I agree that Gearbox is entitled to all legal and equitable remedies against [3D Realms]." The declaration, dated Feb. 16, is made "with sincere apologies for my actions."

"Gearbox graciously accepted the apology," says the lawsuit, filed Feb. 21 in federal court for the Northern District of Texas.

Kotaku reached out to Broussard via email to ask why this lawsuit was proceeding if he and Miller apparently already admitted wrongdoing, apologized for it, and promised to stop. A response was not received as of publication time. Any further comment from Broussard, Miller, 3D Realms or Interceptor will be updated here.

Gearbox's comment was essentially limited to providing reporters copies of the lawsuit and its attachments.

Duke Nukem: Mass Destruction was to have been a "top-down role-playing game." The teaser site AllOutofGum.com appeared around Feb. 1 with a countdown set to expire on Feb. 25. That page presented a block of coded text, promising to reveal it if the game got 10,000 likes on Facebook. Fans decrypted the text anyway, revealing a pitch describing the game as "an Unreal Engine-powered galactic adventure to save the President from an apocalyptic alien threat." Eurogamer noted that Miller was said to be working on a PC and PS4 project back in December. AllOutofGum.com did not specify whether PS3 or PS4, or both, was getting Mass Destruction.

This also isn't Interceptor's first scrape with Gearbox over who can make a Duke Nukem game, either. Interceptor was to have published the fan-made Duke Nukem 3D ReloadedDuke Nukem 3D Reloaded but ended the project in 2011. In a statement at the time, Interceptor asserted it still had a noncommercial licence "to use the Duke Nukem brand for our creative ambitions."

Gearbox released Duke Nukem Forever on June 14, 2011. It was a critical bomb but ultimately was profitable for Take-Two, possibly thanks to the notoriety the name acquired over a dozen years in which the highly anticipated sequel to Duke Nukem 3D was built, torn down and started over repeatedly.


Comments

    Seems like a pretty big slap in the face from 3D Realms. They sold the rights to Gearbox to bail themselves out of a bad situation, and now they are trying to pretend it never happened. Seems like a desperate attempt from an almost defunct studio that realized they have absolutely nothing to their name apart from their-long dead franchise which they don't even own anymore.

      Agreed.

      They gave away their right to do anything with the Duke franchise when they sold it to Gearbox.

      If they had just gone to Gearbox and said "hey, we want to make this game, will you give us permission to do it?" they might have said yes, with the proviso that they got a cut of the profits. But instead they went ahead and made the game without permission. Now Gearbox will more than likely have the right to either demand they destroy all their work, or take it from them, slap the Gearbox logo on it and release it.

        I wouldn't count on Gearbox releasing another failed attempt at a "Duke Nukem" game; after the atrocity that was "Duke Nukem Forever". Clearly 3D Realms doesn't possess the necessary skillset or developers to create a decent game, so I hope it will be trashed; never to be seen again.

    3DR lost the plot years ago. Every bit of DNF media they released was a lie, and it was only uncovered when the code and assets moved to Gearbox. Miller and Broussard deserve a lot more negative karma than they have received.

    Why on earth would they bother making something about a washed up caricature who was a tragic throwback even in the 1990s and has a history of shit gam... oooh 3d realms...

    Pretty stupid move. Did they ever think they'd get away with it or was this just a publicity stunt?

      I'm voting 'stupid move'. They seem to have a history of legal rights misunderstandings.

    There's no way 3D Realms could have earnestly believed they'd get away with this, so there has to be more to it. Maybe there's some convoluted way of making profit out of this scenario, or perhaps it's a way of strong-arming Gearbox into a development role they wouldn't otherwise have taken on. Think videogame production world version of The Producers scenario. It's just too bone-headedly stupid to make sense any other way.

    I just want a Duke Nukem 4 from Gearbox! An actually good DN game that is made by ONE studio in 3-4 years. A shooter with a bit more depth, maybe something that focuses on Duke having to struggle with and adapt to what it is to be an action hero in the 21st century. I mean look at the new Rise of The Triad and Shadow Warrior games and take notes.

      The aliens should turn him into a woman and he has to put up with all the crap he subjects the ladies to, they use sonic weapons using his old dialogue as the source sounds and it sends him into ptsd by the end of chapter 2. That's about as mature I can see a Duke game being.

      I'd love a new entry in the series to be made by the studio-formerly-know-as people can fly.

      Bulletstorm was duke nukem without the duke.

      After seeing how Gearbox act when given a HUGE franchise (Aliens) I have no hope at all that they could do a Duke game justice.
      They're only interested in 2 things: Borderlands, and flat-out lying to their customers.

    Meh, let them do it, i say. It's 3D Realms.
    They'll never finish it anyway.

      "The next DUKE game in 2016!"
      "The next DUKE game in 2020 we promise!"
      "The next DUKE game we SWEAR it'll be out 2030!"
      "My father promised 2030 and I SWEAR we'll hit 2050!"
      "Listen, I know our ancestors said 2050, but this 2250 target is TOTALLY doable..."

    3D Realms should re-release Balls of Steel instead. I would happily buy that again!

    Sounds like the owners of 3D Realms are looking for an easy way to shut everything down without having to pay the workers.

    1. Suck all the money that remains
    2. Get in legal trouble for something you could never, ever win
    3. Publicly cry poor and shut down everything
    4. Walk away with the cash.

Join the discussion!