Take-Two Sue Apogee Over Duke Nukem Forever

By John Walker on May 15th, 2009 at 9:51 pm.

Won't be able to afford those cigars much longer.

It’s time for a new twist in the tale of Duke Nukem Forever. Shacknews are reporting that Take-Two are now filing a lawsuit against the remnants of Apogee and 3D Realms, suing them for failing to deliver the promised game, and demanding a copy of the source code. Cor blimey. In a round-up of who’s suing who today, business news site Bloomberg mentions the case, stating that Take-Two are making the case because “Apogee breached an agreement to design the latest installment of Duke Nukem.” And in recently discovered papers, it’s been revealed that the publisher are demanding a copy of the source code, and assurance that none of the game be leaked or destroyed.

It has been widely reported that 3D Realms’ development of Duke Nukem Forever was entirely self-funded, but this doesn’t mean money didn’t change hands between Take-Two and 3D Realms. In 2000, Bloomberg reports, Take-Two paid $12 million for the rights to publish the game, by then already into its third year of development. After the famous incident in 2003 when Take-Two announced the game wouldn’t be ready for Christmas, and 3D Realms boss George Broussard posted on Shacknews that, “Take Two needs to STFU imo,” the relationship between the two companies was obviously tense. Come 2007, a further agreement was made between them, but what that entailed is unknown. 3D Realms meanwhile have made it clear that they never saw any of the $12m, after co-founder Scott Miller made a comment on another Shack story about the matter. Asked if they’d received any of the TT money he replied,

“No. We didn’t get a penny of that money. This, along with so much else, is 100% spin, being eaten up by those who have no clue whatsoever. But, we cannot talk yet. We will, soon…”

The filed complaint from Take-Two states,

“Apogee continually delayed the completion date for the Duke Nukem Forever. Apogee repeatedly assured Take-Two and the video-gaming community that it was diligently working toward competing development of the PC Version of the Duke Nukem Forever.”

However, now 3D Realms has shut up shop, cancelled development of the game, and fired many employees who were working on it. Hence Take-Two’s rather perturbed response. Their court order demands that Apogee be:

(i) enjoined from altering, damaging or destroying the existing source and object code for the videogame known as “Duke Nukem Forever” and be required to maintain and enforce all security measures necessary to preserve the integrity of the code;

(i) enjoined from disclosing, distributing, transferring, or selling to any party other than Take-Two any proprietary information related to DNF… and be required to maintain and enforce all security measures necessary to preserve the confidentiality of such proprietary information, and;

(iii) required to immediately deliver Take-Two a copy of the existing source and object code for DNF…

Some of this may be a bit late. There have already been leaks from the game, with concept art, screenshots, movies and design documents appearing in various places. It looks like it’s going to only get uglier. So let’s end on a brighter note, with how Bloomberg described the game for its readers:

“a game in which the player ‘shoots’ enemies.”

Big thanks to Michael Cook for the tip, and to Shacknews for doing all the work.

, , , .

61 Comments »

Sponsored links by Taboola
  1. Arca says:

    The plot thickens!

  2. Hypocee says:

    ‘Enjoyed from’ – Lawyer typo, har har.

  3. manintheshack says:

    Nuts. Just… nuts. It certainly is the season to be scandalous.

  4. psychosomatic says:

    I s’pose after all this time Scott Miller would know what was 100% spin and what was not….

    /facepalm

  5. Larington says:

    I can just imagine the defence starting with saying “Whats in a name?” and then going onto explain that by implication the name of the game Duke Nukem Forever was indication that the game might take forever to make and that therefor such a lawsuit is out of order, or whatever.

    Shame about all those jobs that have been lost.

  6. edosan says:

    Maybe if this goes to court, we’ll find out exactly what 3D Realms has been up to for the past ten years.

    “Actually your honor, we just screwed around and played Xbox all the time.”

  7. Snuffy (the Evil) says:

    Like it’s their bloody fault they went bankrupt working an a cursed game.

  8. Baris says:

    As awful as I feel about 3D Realms closing down, at least this means DNF isn’t being abandoned, right?

  9. Dominic White says:

    Well, it means there’s at least a CHANCE of it getting salvaged and finished someday. Just a chance, though, so don’t go betting on anything.

  10. lonerock says:

    @Dominic White: ALWAYS bet on Duke!

  11. MetalCircus says:

    Oh my god, you SHOOT stuff? Jesus fucking christ!

  12. Serondal says:

    I figure they just came to work every day, looked at their computers and said, “eh, I’ll work on it tomorrow, for sure” 10 years later. . . I just hope their lawyers are more motivated towork on theri case then they were to work on the game.

    Just for shits and giggles if I were me at 3d Realms I would have destroyed the source code and had my best coders pump out an endless randomly generated Rogue-like called Duke Nukem Forever, handed it to the publisher then walked away.

    WTF is this D? (Uh, thats Duke Nukem Boss, thats you)

  13. Sum0 says:

    I await with schadenfreudisch schadenfroh glee the inevitable document of the rise and fall of DNF in a year or two.

  14. TheLordHimself says:

    Duke looks a bit like Bruce Willis.

  15. Kadayi says:

    Not that much of a shock tbh as the game is so infamous now, that whatever they can salvage undoubtably has some retail value, even if the bulk of sales are made purely out of morbid curiosity. I suspect if anything the leaked footage has whet enough appetites to convince Take 2 to go down this route.

    The interesting question is what happened to the $12m Take 2 said they paid. There clearly has to be a record of it going somewhere.

  16. Serondal says:

    Duke looks like a freak off spring of Bruce Willis and Paul from Tekken O.o

  17. D says:

    I believe the Bruce Willis model was made to look like Duke, so thats to be expected. The Bruce Willis model was ofcourse not meant for PC games, so could be prerendered in far better detail. Also, chronology is not that important in this argument…

  18. Tei says:

    Probably after years toying the code, it will be infectious.
    Maybe Is not a good idea to ask for the code.

    *searchs the penny-arcade joke about Development hell and fail *

  19. Taill4f4r says:

    George should have written up his own contract between himself and 3DRealms. And now claim all the assets as his, since the company didn’t fulfil it. /ignorance.

  20. I am beginning to understand this comment system says:

    “a game in which the player ’shoots’ enemies.” Wow, that is priceless, that needs to be on a plaque somewhere.

    But yeah this lawsuit is completely reasonable. I usually would side with the developers on this kind of issue but being reminded of “Take Two needs to STFU imo,” reminded me of the hubris of these guys.

    George, you can only say something like that if your can actually get the game out for Christmas. Also you can’t play the victim when you signed a contract with your publisher saying that you would deliver said game and then delayed the thing for, what was it, 5 years in 2003?

  21. Taill4f4r says:

    It’s interesting they can ask for the source code and such because the contract wasn’t fulfilled.

    So, tangentially and somewhat related to the other topic: should a contract be considered fulfilled if a game is full of bugs? Should publishers be allowed to sue devs that give them what could be considered an incomplete game? Hm.

  22. D says:

    I think they’re asking for the source code as monetary compensation for the broken publishing deal. I don’t think they have any actual claim to the IP or code, as much as they deserve compensation for the money they bought the publishing deal for. Obviously I’m not a lawyer or anything, but it sounds like Apogee/3DR could sell off the IP to any other company, and then settle the lawsuit with 12$ mil to TakeTwo (which was their expense). They’d probably prefer the code, so they can utilize it to make bigger profits down the line.

    The two companies also had a 2007 deal apparently, but I don’t see how this can invalidate their claim unless the deal included “the game may never be finished.” I think 3DR have tied themselves to produce a finished game by repeatedly stating that it’ll be out “when it’s done,” and never the much less promising variant: “when and/or IF it’s done.”

    Opinion Away! Why thank you, I will!

  23. Taill4f4r says:

    Hmm, so the case could end up trying to value the code, perhaps.

  24. Hobbes says:

    @edosan: I think this is probably what they were doing… http://www.penny-arcade.com/comic/1999/11/03/

  25. Thants says:

    Hobbes: That is impressive. A comic from 1999 joking about how long they’ve been making it.

  26. Thomas Larsen says:

    “Well, it means there’s at least a CHANCE of it getting salvaged and finished someday. Just a chance, though, so don’t go betting on anything”

    No this basically means that the current DNF is over, unless Take 2/3DR wants to released an outdated game in a couple of years.

    A lot of internal sources point on the game being very close to being done, so really you didn’t think that 3DR would just throw millions of dollars down the drain, did you? 3DR is obviously looking for new financing, but if this case gets accepted, 3DR’s DNF is done for, and whoever wins will want to start over when the case is over in a couple of years.

    The best thing that could happen now is that either the case gets dimissed, or Take 2/3DR settles out of court, and allows 3DR to continue on the game, in exchange fora new publishing contract(i.e. one with deadlines and all that).

    3DR would win, Take 2 would win, Gamers would win.

  27. PC Monster says:

    “3DR would win, Take 2 would win, Gamers would win.”

    nnnnnnaaaarrrGGGHHH!

    Nooo! I can’t take it anymore! PLEASE, for the love of Roy Orbison, just let it DIE.

  28. Kadayi says:

    @D

    The game engine used in DNF is unreal 3 I believe, it’s not a case of take 2 pursuing the Source code for the game engine to sell onto other people, they are pursuing it so they can salvage a game that they presently solely own the rights to publish (no one else can do it). As it stands the only way DNF will ever see store shelves is if Take 2 get their way. Clearly they could of thrown more money at 3D Realms in the hope that eventually they might deliver, but given their track record its clear they weren’t exactly reliable. Much easier to let them go to the wall, legitimately argue for the IP/assets & code and then hand it off to a reliable development team elsewhere to bring it to ship in 12 months time.

  29. Thomas Larsen says:

    Kadayi, DNF is based on Unreal 2 engine(If i recall it doesn’t even have the 2.5 improvements).

    As for the source code, it has nothing about “salvaging” it, the source code is off limits until this case is over which, barring any out-of-court settlements, could last several years. Take 2 themselves don’t expect the courtdate being before sometime next year. All that time they will be unable to do anything with DNF, and by the time the case is over years will have passed, making DNF outdated and irrelevant.

    My guess is that Take 2 is worried that 3DR will use the studio closure as a primer to “make a new game” using the Duke Nukem Forever assets, that would be a breach of contract, but first Take 2 needs to prove it, and for that they will need the source code.

    Secondly i think Take 2 will have to prove, or atleast make it probable that 3DR would be unable to keep their contractual agreement, which would be based on how finished the game was, again needing the source-code.

    So as i said, if this case goes through, DNF will be out of developement for atleast a year, possibly more, Take 2 is probably more interested in the IP rights than the source code at that point, and if they win the case and 3DR is forced to pay, for example 12 million dollars, then they may be left with no other option than to sell the Duke Nukem IP to Take 2.

    That doesn’t mean DNF will never exist, but most of the assets they will gain from winning the case would be obsolete.

  30. Dave Gates says:

    This seems to suggest that Take Two still want to publish the game at some point, it would be stupid not to as it would be easy money, even if the game was appauling it would sell like swastika’s at a Jim Davidson gig.

  31. Kadayi says:

    @Thomas Larsen

    Whether its Unreal 2/3 is beside the point, its not about garnering the engine as D seemed to suggest, but about securing the assets, source code etc . Also ‘salvage’ is exactly the right term, because right now that Source code is doing nothing with the company having gone belly up. Dates are irrelevant also because the fact of the matter is 3DR don’t have the money and would certainly lose in the event it went to Court. So they’ll settle out of court sooner rather than later by complying and handing over what they have. The threat of legal action is enough.

  32. Thomas Larsen says:

    Definitely not about securing the assets, unless they want old outdated assets that is.

    3DR hasn’t gone belly up, DNF hasn’t been cancelled, they’ve been forced to fire all of their developers, because of their financial situation.

    Reading Scott’s comments on the situation makes it pretty obvious that they’re definitely not going to give up without a fight.

    Take 2 knows that if they get it their way, this case will take years, so they obviously aren’t after the assets, because by the time they may win the case to get said assets, the assets will be obsolete.

    They’re going for the rights, no doubt about it.

  33. Kadayi says:

    The assets are only ‘outdated’ if 3DR try and hold out for a long and protracted trial (assuming they can even afford a defense lawyer). A year from now I’d say they’d still stand up to graphical scrutiny, and after all that’s hardly the sole measure as to whether the game will be a commercial success (that kind of narrow ‘graphics are king’ thinking is what got 3DR into this mess in the first place). The game has enough infamy tied to it that it will sell assuming it reviews ok.

    3DR might not be filing for bankruptcy, but with no saleable products, no projects in active development and no development staff they aren’t exactly peachy. Short of a large cash injection from a third party (unlikely as they are the biggest joke in the industry) to get them back into production they are screwed and more so with every passing day.

    Taking the existing work/assets and getting a new development team to complete it would probably cost maybe 8-10 million (taking into account the hassle factor) whereas making a completely new DNF from scratch would probably cost 30-40 million on top of the 12 million already paid. Financial sense says you consider option 1 before carrying out option 2, because option 1 will turn a profit, where as option 2 might not.

  34. Thomas Larsen says:

    Kadayi, there’s lots of games, there’s even Duke Nukem 3D on XBLA, and then there’s the deal with Apogee Sofware Inc.

    They definitely don’t have the money to fund DNF developement right now, and they probably won’t be able to without an injection, but they’re definitely not giving up their franchise for no good reason, and they’ll definitely fight for it.

  35. Kadayi says:

    1) They will lose. This is an absolute certainty

    2) Trying to hang onto a franchise they are not remotely capable of developing serves no good purpose whatsoever, not for themselves, the publishers or the fans.

    3)Without substantial income ultimately they will be forced to relinquish their IPs. They are dead in the water. Better to walk away to the next thing rather than try and fight the inevitable.

  36. Thomas Larsen says:

    Kadayi, that depends on the agreement, if it is as it’s been publically referred to then they’ll definitely win.

  37. Kadayi says:

    If Take 2s legal department didn’t think they would win they wouldn’t be making a case, its as simple as that (lawyers cost money). Regardless of whether 3DR ever saw a cent of the $12M is beside the point legally. It was paid to someone and obligations were made that are still in force.

    Seems to me judging by the reaction to this news on the internets most people are quite happy with the idea that Take 2 intend to try and publish the game rather than let it die, even if it means getting another development team to take over and finish the project. 3DRs management pissed away 12 years and produced nothing, what do they honestly deserve save our ridicule?

  38. Thomas Larsen says:

    Yeah, because lawsuits are only won by the plaintiffs.

    Anyways if that’s your belief, not much i can say to convince you otherwise.

  39. Kadayi says:

    Thomas

    to convince me, you’d have to have an argument. So far I’m not seeing one that stands up to any form of legal scrutiny.

  40. Thomas Larsen says:

    Any case that has made it to court is an example of you being wrong, if things were as black and white as you claimed, there would be no need for the court, other than hearings and settlements.

    Take 2 might think they know that they’ll win, but they certainly don’t know it for a fact, nor will they win it just because they think they know they’ll win.

    But good luck concvincing anyone otherwise.

  41. D says:

    @Kadayi

    @D The game engine used in DNF is unreal 3 I believe, it’s not a case of take 2 pursuing the Source code for the game engine to sell onto other people, they are pursuing it so they can salvage a game that they presently solely own the rights to publish (no one else can do it).

    Did you even read what I wrote?

    They’d (T2) probably prefer the code, so they can utilize it to make bigger profits down the line.

    What I wrote was that I think this entire case is about monetary compensation for a broken publishing deal, not actually giving a shit about DNF. Thats just the spin on it.

    Also, pipe dream that DNF will ever get released.

  42. Kadayi says:

    @D

    Exactly how is acquiring the game code/IP/Assets and not finishing the game going to recoup Take 2 the $12M? If 3DR had $12M in the bank they wouldn’t be in this situation in the first place, so the idea that its a monetary shakedown is slightly ludicrous. The only thing 3DR have that’s worth anything is the Code/IP and assets and the only value they possess is if they are either developed by Take 2 or sold off to a third party for development, otherwise they are worthless.

    @Thomas Larsen

    That’s your defence? Seriously if the best you can summon is a wholesale denial of the facts I’d stay way from legal practice. Most legal cases are straight up settlements.

  43. Adventurous Putty says:

    Slowly but surely, the circumstances surrounding this game are ensuring that its story will live on as legend.

  44. Thomas Larsen says:

    You already provided it yourself, most is not all, and not even all settlements are made because of a black & white “win or loss”-scenario.

    3DR didn’t break their contract as there was no set deadline for their project, if Take 2 has a problem with their lost money they should take it up with Atari, 3DR haven’t cheated anyone of their money.

    But given that is the claim they’ll make they’ll have to make it probable that 3DR couldn’t finish the game ever, and that’s why they need the developement assets.

    If this case runs, DNF will be useless when they are done, and what they really will gain is the IP, which, along with Prey and Max Payne has held 3DR afloat for over 12 years.

  45. Gaber says:

    Duke looks like Duane “Dog the Bounty Hunter” Chapman in that pic.

  46. Kadayi says:

    *sigh

    Take 2 Paid for the delivery of a game. 3DR have ceased production of that game, Take 2 are legally well within their rights to demand assets/source code and IP (or anything else) to the title due to the failure 3DR to deliver what was promised. That is the position, whats 3DRs position for refusal to that in your mind? That they don’t want to give it up? Well unless they’ve either the means to refund the money, or the means to complete the game they are SOOL.

  47. Thomas Larsen says:

    Take 2 paid for the right to sell a game, not the delivery of a game.

    They bought this right from Infogrames (Now Atari), which inherited it form FormGen, which in no way paid for it back then.

    3DR hasn’t cancelled DNF, so they still retain said publishing rights, they have no contractual obligation in regards to the when.

    So as i said, Take 2 got nothing on the contract, so their only option is to prove that 3DR cannot fullfill the contract(i.e. they’re not far along in developement to realistically release it) or that they will not fullfill the contract(i.e. 3DR plans to use the DNF assets for another game).

  48. D says:

    which in no way paid for it back then

    Is this legally relevant? Layman example: If you had a concert ticket (that you got for free), I bought it off you for 20$, after which the concert was cancelled. I would be demanding money back from the organizers of the event (in this case, the instruments of the band).

    But legally, you’re saying I should ask for my $20 back, from you? That doesn’t make a lick of sense, to me anyways :)

  49. Kadayi says:

    Any business works on a reasonable expectation of delivery (there is no such thing as ‘when its done’ when it comes business arrangements). 3DR are never going to be able to deliver on their expectations and subsequently they will be found liable. Regardless as to whom originally owned the obligation, it belongs to Take 2 now (original ownership is a moot point). That 3DR laid off their entire development staff and are little more than a postal address now would be evidence enough to any judge in the land that they’re never going to be in a position to finish the game as it stands. Again Take 2 wins.

    Now sure GB and whomever else is left at 3DR can hold out for the trial if they want, but holding out isn’t doing anything more than delaying the inevitable in this kind of situation.

  50. Thomas Larsen says:

    The only one responsible for delaying DNF at the moment is Take 2.

    So i don’t see how you can claim that the current situation means that DNF will never be done by 3D Realms, sure they’ve suffered a setback, but as they’ve not gone bankrupt nor cancelled the game they’ve actually confirmed that they were much still is working on a solution.

    Now it’s pretty obvious that instead of helping Take 2 would rather want to sue them so they could hopefully gain everything, instead of only something.

    But that still doesn’t change the fact that DNF isn’t out of developement, and a week of no developement work hardly qualifies as a game that can never be finished.

    Maybe 3DR should counter-sue Take 2 for interfering with the developement process.