JS

Bethesda v. Interplay, Re: Fallout

note: It’s a sad sign that my first post is being written at home on a Friday night.

The facts as I understand them

I just read the news at Kotaku that Bethesda—developer of last year’s Fallout 3—has filed a suit against Interplay for citing trademark infringement. The general issue boils down to the fact that Bethesda purchased all rights to the Fallout IP from Interplay back in 2007 and is now unhappy with Interplay using the Fallout name in re-releases of the previous Fallout titles: Fallout, Fallout 2, and Fallout Tactics. This, apparently, isn’t out of the blue. Interplay has been selling these titles digitally from places like Good Old Games (GOG.com—I love these guys), Steam, and as a Fallout Trilogy pack. In addition to the profits from these sales, it sounds like Bethesda might seek compensation for damages to its sales of Fallout 3 and a termination of Interplay’s rights to use the Fallout trademark for its currently in-development Fallout MMO.

To be clear, Bethesda is the rights holder to the Fallout IP, and under the agreement of the sale, Interplay is licensing the right to develop and market their Fallout MMO.

What is unclear to me—not being a lawyer—is under such a sale, what becomes of the rights to the existing works? Unless Interplay is incredibly brazen, I assume that they still hold rights to Fallout, Fallout 2, and Fallout Tactics. In which case, I wonder if Bethesda’s ownership of the trademark simply prevents Interplay from marketing these works using the Fallout trademark going forth from the sale agreement? Scanning through the SEC filing, I wasn’t able to find anything pertaining to this—then again, I’m not a lawyer.

According to a comment on the Kotaku post, Interplay was permitted to continue sale of these three games, provided that all marketing, packaging, and promotional materials be approved by Bethesda first, which they did not do. Assuming that to be all true, then Interplay would clearly seem to be in the wrong. They violated their contract, and they must’ve seen this coming from Bethesda.

My thoughts

Speaking from the perspective of a consumer, a fan of the Fallout series, as well as a fan of Bethesda, I have to say that upon hearing the news, I was very disappointed in Bethesda. [note: For now, I’ll keep this a PG blog/post.] For one thing, it seems duplicitous for Bethesda to say that the distribution and marketing of the original Fallout series caused harmed to their sales of Fallout 3, when the single greatest reason for the huge sales of Fallout was the cult following garnered by the original series and the incredible amount of anticipation that has been building up over the past 10 years. If anything, the release of Fallout 3, and the hype around it created by all the fans of the series and the sheep pretending to be long-time fans of it, probably caused the sale of the previous games to jump, but who couldn’t have seen that coming? It certainly doesn’t hurt Bethesda. And, I find it unbelievable that someone seeing Fallout out in the marketplace will do anything to prevent them from buying Fallout 3. They are very different games, and anyone can tell that from simply looking at them—even looking at the 11 year gap between their release dates.

Bethesda may be justified in their lawsuit, they even may have suffered a small but measurable blow to their sales of Fallout 3, but as a consumer and a fan of the series, I expect a more compelling reason for the torch-holder of the IP to block and counter the spread of the Fallout series to as many new fans as possible. If nothing else, the Fallout Trilogy pack might give new fans of Fallout something to do while we await Bethesda’s next entry into the series.

Counting myself as a fan of Bethesda, I’ll hold out for a more understandable reason for this lawsuit. Until then, I’ll return to my Friday night.