Appropriated from massively.joystiq.com
Copyright is a funny animal when it comes to video games in the US. The years Bethesda and Interplay have spent battling each other over the terms of the intellectual property copyrights sale of the Fallout series illustrate how our unique legal view of IP is just as clear mud as it seems.
News of the settlement reached between game software companies Bethesda and Interplay came out in early January. Several years ago, financially ailing Interplay sold their rights to the Fallout IP to Bethesda (parent company ZeniMax). Arrangements were made at the time for Interplay to develop a Fallout MMO, with some intense guidelines in place. Interplay had to secure thirty million in financing, start development within two years and have the game completed within four years of development start. If these stipulations were not met, then the Fallout MMO rights would immediately revert to Bethesda.
The legal battle began when Bethesda took Interplay to court for using Fallout concepts and art in their MMO development. They said they only allowed Interplay the right to the “Fallout” name and none of the content. The courts ruled in Interplay’s favor—I’d like to say just due to pure ridiculousness. Interplay had been working on the development for over a year by the time Bethesda brought them to court.
Bethesda later appealed with claims that Interplay wasn’t holding up their end of the bargain. From the articles I read, I couldn’t find any solid statement s describing how Interplay failed to meet the terms. The latest Game Informer article says they cited the first two terms: full-scale development by April 2009 and 30 million. The only public evidence I’ve seen of their progress are the images from these admittedly weak YouTube videos (there are other videos, but none that look as legit). Duck and Cover (DAC) promoted what was later determined to be a rumor that Bethesda had dropped their appeal and was allowing the still financially unstable company to develop the MMO (some articles state they had as little as three thousand in the company account at one point in time).
Appropriated from mmofallout.com/tags/interplay/
Except . . . Interplay wasn’t even the one developing the MMO, they had Masthead Studios working on it. Bethesda took them to court too and settled on an agreement that Masthead has absolutely no rights to anything relating to Fallout past or present. They added complaints to their case with Interplay that Interplay had no right to farm out the development of the MMO to a third party without Bethesda’s explicit permission, which, Interplay never asked for.
That’s generally the history, so here’s the fallout: Interplay has lost all rights to any Fallout intellectual property for any future game developments and they may only sell their older versions of the franchise until the end of 2012, they also get two million from Bethesda and both companies will pay their own legal fees. Rumors are starting that Bethesda has been angling to take control from Interplay so they can make their own Fallout MMO. (They started their own online division to finance MMOs shortly after they bought the rights to Fallout–see attached article at the end.)
I think Bethesda is taking some plays from Apple and Eolas Technology’s playbook. Because I can’t tell exactly how Interplay failed their contract, I do feel that Bethesda is being rather troll-ish at the expense of Fallout fans everywhere. The situation really paints them as the aggressive bad guys here. (Cue Snidely Whiplash evil laugh and mustache twist.) I’d like to just see everyone get along, I think if both companies had their fans prioritized they should have been able to work together.
Image approriated from http://llphfreedom.blogspot.com/2011/09/politics-aside-for-one-moment-some.html
I have trouble rooting for Interplay however, because they make naive statements : “Bethesda knew that the MMO used assets from the Fallout universe, but said nothing about it at the time ‘because it knew Interplay was doing exactly what the parties intended under their agreements’.” If your legal case is resting on “but they KNEW! And they didn’t stop us sooner!” then your legal department has seriously failed you at contract negotiations and sales of game IP rights.
A second sensational statement came from Interplay’s Caen in January of last year illuminating Interplay’s misguided interpretation of their sale agreement with Bethesda. According to Game Theory Online, Caen was certain that if Bethesda stopped Interplay from finishing the MMO, then the sale of all the Fallout IP would be void and Interplay would have Fallout back and . . . he apparently hadn’t thought about how they would have to pay Bethesda back the sale price of 5.75 million. Either way, no one but Caen saw the sale as something that would or could be reversed.
Much as I would like the originators of the intellectual property to be able to create one last great huzzah of a game from their hard work (I’m a fan of tradition in video game lineage), they just weren’t sharp enough in legal-ese or financially stable enough to avoid loss of their precious content.
Game Informer 227 The Last of Us - Back to the Wasteland - MMO Rights 2