Infamous Pinkerton Detectives Claim Red Dead Redemption's Use Of Historically Accurate Pinkertons Is Trademark Infringement

from the seeing-red dept

Take 2 Interactive is no stranger to fighting bogus complaints about “infringement” concerning how it represents characters in its various games. Most of these fights have been over its flagship franchise, the Grand Theft Auto series, where the developer often enjoys poking fun at pop culture and society through settings and characters that are an amalgam of several stereotyped individuals. This has resulted in entitled celebrities and property owners attempting to sue over trademark and publicity rights in the past, with Take 2 typically coming out victorious by pointing out that its work is that of parody and covered by fair use.

This is now happening with a different game but the basic story remains the same. In this case we have the added insanity of a rather infamous company trying to profit off of its infamous history. Pinkerton Consulting & Investigations sent a cease and desist notice to Take 2 after Red Dead Redemption 2 was released due to the game including characters who were a part of the company during ye olde olden times. In response, Take 2 filed suit.

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.

Okay, so a lot to get into here. First and foremost, including Pinkerton in a story about the old west absolutely is an obvious aim at being historically accurate. I didn’t realize it until reading this story, but the Pinkerton operation around today is the same Pinkerton organization that has a sordid history working with both government and industry specifically to infiltrate, investigate, and ultimately stop the spread of labor unions, while encouraging strikebreaking. The infamous Pinkerton agency goes all the way back to the 1800s and was somewhat notorious for its tactics. The company also was very much involved in investigating and tracking down notorious outlaws such as Jesse James, Butch Cassidy, and the Sundance Kid. All of this, of course, makes their appearance in an old west outlaw game perfectly reasonable fodder.

Take 2 notes all of this in its declaratory judgment suit, along with mentioning all of the other cultural media that includes references to Pinkerton in stories about the old west.

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.

Yet, when it comes to the wildly successful game Take 2 released, Pinkerton suddenly wants to lean on trademark law as a way to profit over a historical reality. This is absurd on many levels, including that the use by Take 2 — much like with its GTA series — is obviously fair use. On top of that, Pinkerton’s claim in its C&D that the public is going to somehow be confused into thinking that Red Dead is the product of, affiliated with, or approved by Pinkerton is laughable at best. I would posit that most people playing the game likely won’t know that Pinkerton is a real company, whereas those that do will see it as the inclusion of historical characters that are prevalent throughout the game.

In response to the lawsuit, the Pinkerton folks claim that part of their complaint is that this is a historically inaccurate picture of the Pinkertons, and that it’s harming their good will. Given the existing reputation of the Pinkertons from back in the day, it’s difficult to see how there is much good will to harm here in the first place, and litigating the reputation of the Pinkertons from the 1800s in the old west doesn’t seem like a productive use of anyone’s time.

We’ll see how the court decides this, but it’s quite difficult to imagine works of art having to license history in the way Pinkerton has suggested Take 2 should.

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Companies: pinkerton, pinkerton consulting and investigations, rockstar games, securitas ab, take 2 interactive

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Comments on “Infamous Pinkerton Detectives Claim Red Dead Redemption's Use Of Historically Accurate Pinkertons Is Trademark Infringement”

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42 Comments
anon says:

the same but different

She wasn’t leaning on trademark law to make her case, but legendary actress Olivia de Havilland just recently tried suing a Hollywood production company over their depiction of her in the series Feud: Bette and Joan, which after winding its way through the various courts, she lost.
https://en.wikipedia.org/wiki/Feud_(TV_series)#Controversy

Anonymous Coward says:

Re: the same but different

being well over a hundred years old, Olivia de Havilland nodoubt has someone else acting on her behalf. The show’s producers must have been betting that she’d surely be dead by the time it came out, so they decided to put in something scandalous, as dead people can’t sue for libel/slander/defamation etc.

PaulT (profile) says:

Re: Re: the same but different

Either way, there’s a huge difference between the two cases. One is a person seeing parts of their own life being dramatised and advertised as a direct recreation of events. The other is an expressly fictional world that happens to contain versions of people who happen to be working for the same company long before any current employee was born.

There’s not really any comparison beyond the superficial.

Toom1275 (profile) says:

On top of that, Pinkerton’s claim in its C&D that the public is going to somehow be confused into thinking that Red Dead is the product of, affiliated with, or approved by Pinkerton is laughable at best.

Doesn’t the standard "detective" trope say that detectives are supposed to be good at understanding how things do or don’t connect?
Tells you how good these Pinkertons must be at their job.

Rojgar Results (profile) says:

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Anonymous Anonymous Coward (profile) says:

Re: Re: Re:

Then there is the problem of…

"Young Guns 2 – total domestic theatrical box office $44 million"

plus Hollywood accounting where they have no profit…ever.

VS

"Red Dead Redemption 2 – $725 million in sales in the opening weekend"

plus unlikely Hollywood accounting where there might actually be some profit.

Anonymous Coward says:

Doesn’t Tim know that “historical accuracy” has become a very controversial issue in video game communities lately?

YouTube recently banned a user for posting video clips of Red Dead Redemption, but this brings up another question – can a 4th-party trademark/copyright claim result in an automatic takedown, as in Pinkerton claiming intellectual peoperty rights on all YouTube videos showing Pinkerton in Red Dead Redemption, and can users who post such clips of video games have any legal liability?

Anonymous Coward says:

Re: I was a Pinkerton in 1988...

At least you were told about the strike. Back before the internet, it was common practice for job placement companies to send job-seekers to a place (sometimes thousands of miles away) where the workers were on strike, without ever telling them they’d be employed as strikebreakers. Such skullduggery should have been illegal back then, but sadly it’s not even illegal today.

Anonymous Coward says:

I played RDR2. I never once raped a child, raped a unionist, raped a unionists wife whilst thugs made the husband watch, murdered entire groups of native americans nor cut the eyeballs from the screaming wife of a man trying to join a union.

Nor did I nail the door shut to a womens hostel and set the building alight, shooting anyone that tried to escape through a window.

So RDR2 != Pinkerton.

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