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.

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61 Comments »

  1. Taill4f4r says:

    I suppose the worst thing for Take Two would be for 3DRealms to go into liquidation. So they need to sue as soon as they can.

    I wonder how many debts 3DRealms has. And how his personal funds were handled by the company, could they even be in debt with George himself?

  2. Kadayi says:

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

    Why? As you yourself claim, they aren’t ‘funding’ the game (or obliged to) so the only ones who are responsible for 3DR financing is 3DR at the end of the day, and given their pisspoor delivery record I’m not surprised they can’t raise any more investment in these lean times. I doubt there’s a publisher in the world who’d cut them a cheque at present.

    “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.”

    I actually suspect take 2 would like a finished product to sell, but so far that doesn’t look like it’s happening, and increasingly unlikely to either. However I don’t blame them for not giving 3DR any further funding. They’ve had 12 years to get this game done. How much more rope can you give them to hang you by?

    “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.”

    They just laid off their entire staff, do you not see the Iceberg on the horizon?

  3. Thomas Larsen says:

    I wasn’t talking about financing, i was talking about delaying the game. This lawsuit prohibits 3DR to continue their work, Take 2 should sue if 3DR started working on other projects, or if the officially cancelled DNF.

    3DR is trying to get back on their feet, the very least they could do is to back off while they give it a shot, or try to finance them if they want the game.

    But i have absolutely no doubt that this is a setup from Take 2, we already know their relationship is pretty strained, and i wouldn’t be surprised if we hear 3DR saying that Take 2 offered them funding but at the last moment pulled out.

    But we’ll see about that.

  4. Kadayi says:

    You have a luminous imagination when it comes to legalese.

    There is absolutely nothing in the order instructing them to cease production on the game. What the order states is that they deliver a copy of the game code etc as is unaltered, and that they cannot use the created assets to make an alternative product (folding DNF to bypass their publisher obligations and then releasing “Baron Yesterday Last Week” a month later). Principally its blocking 3DR from self sabotaging the existing work done in order to try and bypass the copy request. Why would they do this? well probably because they don’t trust GB not to do something stupid. If there’s been a strain in the relationship between Take 2 and 3DR whom exactly do you think the main culprit is?

    I recommend giving the most recent giantbomb podcast a listen as they have quite an interesting discussion on the 3DR situation.

  5. MrBejeebus says:

    take-two seem to be a bit miffed that 3DR shutdown to me…

    DNF was never coming imo, from gameplay vids it looked ok, but not worth 12 years of development.

  6. Brad Grenz says:

    The threads at Shacknews and Kotaku on this subject are a terrible embarrassment to the entire species. I can’t believe how after a week of reporting on this story there are still so many people so aggressively ignorant of the simplest facts about the case.

    Thomas, you at the least are not as completely confused about the circumstances, but your analysis of the situation is pretty off base. Kadayi is completely right here. Whether or not Take 2 paid money directly to 3D Realms doesn’t matter. There exists a contract between them committing 3D Realms to eventually deliver a finished game. Obviously there was no time table. 3D Realms was also completely responsible to fund the game themselves. As long as 3D Realms still seemed to be sorta working on the game Take 2 couldn’t do anything but wait.

    But then 3D Realms ran out of money, Take 2 declined to inject new money into 3D Realms to fund more development and work on the game stopped completely. That’s really, I believe, what opens the door for legal action. As DNF is no longer being worked on, 3D Realms can no longer pretend it is still on the way to shield them from litigation.

    We cannot pretend like this is a temporary set back. 3D Realms can’t offer other investors anything in exchange for capital or credit. Take 2 already holds the all valuable publishing rights. 3D Realms could try and repackage the game under a new name with a new publisher, but that publisher would certainly be aware of the litigation they’d invite. Given the 12 year catastrophe that is DNF up to this point why would anyone else take the risk? George and Scott have nothing left to bargain with.

    Frankly, it would be irresponsible of any public company to throw more money at 3D Realms, so not only would Take 2, or any other party, be risking an even greater loss by funding further development, they would open themselves up to lawsuits from shareholders, etc. 3D Realms has been given all the last chances it is ever gonna get. To suggest they are being “set up” is beyond absurd. There is zero evidence of that, but a lot of evidence of 3D Realms’ incompetence and perhaps malfeasance.

    The only thing 3D Realms has left of value is the DNF code and assets and the Duke IP. But, frankly, those aren’t valuable to anyone but Take Two since they maintain the publishing rights.

  7. Kadayi says:

    @Brad Grenz

    Glad to see someone else comprehends the realities of the situation. In the Giantbomb podcast they hint at industry rumours of GB doing the rounds of other developers such as Valve, ID and Epic trying to raise investment and meeting closed doors at every opportunity in the previous weeks before the closure. If none of those companies are interested in putting money into the project for a slice of the profits down the road then it doesn’t exactly sound like DNF was either close to shippable or that impressive a title.

  8. Adam says:

    There may be a lot of truth to how Take-Two screwed over 3D Realms. Anyone remember Battlecruiser 3000 AD by Derick Smart? He had his game rushed out the door and it tanked because of Take-Two buying the rights then saying “Get it done!”. Some truth may be here to Take-Two not being the best of friends.

  9. Bobsy says:

    Well Take Two have a long history of uneasy relationships with their developers. Remember the Frontier games? Poor Davey Braben.

  10. Kadayi says:

    @Adam

    I’d say 12 years is plenty of time to get a game developed in. I’m sorry but this ‘blame the publisher’ BS, as an excuse for 3DRs managerial ineptness honestly doesn’t fly in this case. The people I feel sorry for are the designers and artists who’ve wasted countless man hours on the project to see no reward for their efforts at the end of the day. Here is hoping that the taint of 3DRs failure to deliver doesn’t work against them in their search for future employment.

  11. rafal says:

    @Adam – Battlecruiser 3000 AD by Derick Smart was an epic joke, like Daikatana :P Both are on list of biggest failures in game industry (by wikipedia, and by IGN portal afair), and DNF will probably join.