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.

Filed Under: fair use, history, licensing, nominative fair use, pinkertons, red dead redemption 2, trademark
Companies: pinkerton, pinkerton consulting and investigations, rockstar games, securitas ab, take 2 interactive


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  • icon
    Gary (profile), 15 Jan 2019 @ 8:22pm

    Confused?

    I immediately went out and tried to hire Take Two to beat up some union activists but they refused. It's hard to hire good thugs these days!

    reply to this | link to this | view in chronology ]

  • icon
    lorgskyegon (profile), 15 Jan 2019 @ 9:06pm

    Forget a trademark claim. This is a clear case of definition of character

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jan 2019 @ 9:58pm

    "would posit that most people playing the game likely won't know that Pinkerton is a real company"
    And now they do. Seems like an effective PR move. File one lawsuit and people all over world are talking about you.

    reply to this | link to this | view in chronology ]

  • icon
    DV Henkel-Wallace (profile), 15 Jan 2019 @ 10:04pm

    What if it's reverse Stresand?

    Perhaps Pinkerton's wants the publicity?

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 16 Jan 2019 @ 7:17am

      Re: What if it's reverse Stresand?

      Then it is almost certainly better to hire a publicist rather than a lawyer.

      If they wanted publicity, they could slap, "As seen in smash hit Red Red Redemption!" on their adverts and give the Take Two lawyers fits instead! :)

      reply to this | link to this | view in chronology ]

  • identicon
    anon, 15 Jan 2019 @ 10:26pm

    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

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jan 2019 @ 3:25am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 16 Jan 2019 @ 3:34am

        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.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Lawrence D’Oliveiro, 15 Jan 2019 @ 10:54pm

    Busting Commie Unions Is Doing God’s Work

    But when simply reporting the facts makes you look bad, that’s just more proof that REALITY HAS A LIBERAL BIAS!!!!1111

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 16 Jan 2019 @ 12:27am

    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.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Rojgar Results (profile), 16 Jan 2019 @ 12:55am

    Education

    Sarkari Result is the most Trusted Latest Government jobs & Sarkari Result Portal for the job seekers. Sarkari Result Provided Updated instantly every moment regularly of all latest jobs Results, Answer keys, Admit Cards, Online form for Various Government Sarkari Exam, Exam Syllabus, Admission form updates related to job information. Through the website. you can get all the latest information of state or central level Government job in india.

    reply to this | link to this | view in chronology ]

  • icon
    wereisjessicahyde (profile), 16 Jan 2019 @ 2:00am

    And who can forget the legendary performance in Young Guns II by...er..[checks notes]Don Simpson as "Pinkerton Man"

    reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 16 Jan 2019 @ 2:42am

    I was well aware of Pinkerton's historical reputation for violence and thuggish behavior.

    I didn't know that the company still existed, apparently largely as a brand name. I would have thought that name would have been abandoned as irretrievably tainted.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jan 2019 @ 3:32am

      Re:

      That depends what side you're on. Lawyers who are infamous for perpetrating scorched-earth tactics and below-the-belt punches are always in high demand. The same goes for private detectives who get results by breaking the law. "Winning" is all that matters.

      reply to this | link to this | view in chronology ]

    • icon
      Jeremy Lyman (profile), 16 Jan 2019 @ 5:31am

      Re:

      Securitas AB pulls up Scooby-Doo villain mask to reveal Pinkerton and asks the gang to stop telling people about things it did in the past.

      "Jinkies, you're still alive?"

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jan 2019 @ 3:16am

    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?

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 16 Jan 2019 @ 3:40am

      Re:

      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

      Well, the DMCA doesn’t discriminate about this sort of thing, so…yes.

      reply to this | link to this | view in chronology ]

      • icon
        bhull242 (profile), 16 Jan 2019 @ 5:01pm

        Re: Re:

        Heck, the DMCA is so indiscriminate that I could send in a DMCA notice to YouTube and get them automatically taken down, and I never even heard of the Pinkertons before and have passing familiarity with RDR2 at best.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jan 2019 @ 4:24am

    Perhaps they should rename all Pinkerton references to Plonkerton.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jan 2019 @ 7:36am

    "The order demands that Take-Two pay either a lump sum or ongoing royalties"

    --and--

    "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."

    So it's ok to harm their good will as long as they get paid...

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 16 Jan 2019 @ 7:38am

    Goodwill

    A company so well loved they made a law with their name. The Anti-pinkerton Act.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jan 2019 @ 8:02am

    The infamous Pinkerton agency goes all the way back to the 1800s and was somewhat notorious for its tactics.

    So... nothing has really changed since then?

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 16 Jan 2019 @ 11:37am

    I was a Pinkerton in 1988...

    ...and was getting offers to bust strikes for pay.

    So Pinkerton's sordid history (even though at that time it was recently CPP/Pinkerton having recently been bought out by CPP (California Patrol and Protection? I forget.) may still be pretty recent.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jan 2019 @ 12:53pm

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jan 2019 @ 12:42pm

    really, that history was forever ago; thus "history". Times have changed and so has Pinkerton's industry. Those making remarks here would do well to research the company a little bit before commenting on what they know little about.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 16 Jan 2019 @ 12:56pm

    Appearances in media

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Jan 2019 @ 1:46pm

    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.

    reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 16 Jan 2019 @ 1:50pm

    We Object...

    to the historically accurate representation of two real-life employees of our firm. We would much prefer a totally made-up representation instead! Then we could sue you for historical inaccuracy and malicious misrepresentation!

    reply to this | link to this | view in chronology ]


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