The publisher of Red Dead Redemption 2 has thrown down a legal gauntlet against the security company Pinkerton — which demanded royalties for using its name in the game. According to a complaint filed late last week, Pinkerton sent Take-Two Interactive a cease-and-desist letter over the characters of Andrew Milton and Edgar Ross, a pair of Pinkerton agents and major antagonists in the game. Now, Take-Two is suing to have the characters declared fair use, arguing that they’re part of Red Dead Redemption 2’s detailed historical setting.
Pinkerton Consulting & Investigations (now a subsidiary of security firm Securitas AB) delivered its cease-and-desist order in December, roughly two months after Red Dead Redemption 2’s release. It commended game development studio Rockstar’s “clear affection” for Pinkerton, but claimed it was trading on the “goodwill” associated with the company’s trademarks, creating a false impression that the game was made by or connected with Pinkerton.
The order demands that Take-Two pay either a lump sum or ongoing royalties. But Take-Two contends that Red Dead Redemption 2 — which the lawsuit describes as a “gripping Wild West adventure” and “essentially an interactive film” — is protected by the First Amendment.
Take-Two notes that the Pinkerton National Detective Agency is referenced in plenty of other Western fiction, and that the agency played a major role in real 19th- and early 20th-century American history. (It was not, however, the inspiration for the Weezer album Pinkerton.) Among other places, Pinkerton agents appear in the 2000s-era TV series Deadwood; the 1980 film The Long Riders; and the 2010 game BioShock Infinite, where the protagonist is a former Pinkerton agent.
The complaint accuses Pinkerton of trying to profit off Red Dead Redemption 2, which sold 17 million copies within two weeks of release. It also gives Take-Two a chance to brag about how big and historically accurate Red Dead Redemption 2 is — quoting glowing press from news outlets and, more idiosyncratically, the Audubon Society. “Historical fiction— television, movies, plays, books, and games — would suffer greatly if trademark claims like [Pinkerton’s] could even possibly succeed,” Take-Two declares. “[Pinkerton] cannot use trademark law to own the past.”
In a statement responding to the lawsuit, Pinkerton president Jack Zahran claimed Take-Two’s villainous agents were a “baseless” and “inaccurate” portrayal of Pinkertons. “Pinkertons are seen shooting horses, shooting guns and firebombs into buildings where women and children are present, and as violent villains in the community. History tells a different story,” he said. He also argued that Pinkerton employees now “have to explain to their young game players why Red Dead Redemption 2 encourages people to murder Pinkertons.” Nonetheless, Zahran expressed hope that Pinkerton and Take-Two could come to an “amicable solution” to their dispute.
Update January 15th, 6:00PM ET: Added statement from Pinkerton.
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