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Red Dead Redemption 2

Take-Two responds to Pinkerton lawsuit with its own lawsuit

The publisher argues that the portrayal of Pinkerton agents is fair use in its historical game, but Pinkerton disagrees.

We've been hearing about a fair few game-related lawsuits in recent weeks and months, and now Red Dead Redemption 2's publisher Take-Two Interactive is at the center of another one. The Verge reports that security company Pinkerton filed a cease-and-desist notice to Take-Two over the use of two Pinkerton agents in the game, and now Take-Two is launching their own lawsuit claiming that the characters are under fair use.

These characters of Andrew Milton and Edgar Ross are the cause of all this trouble, but Take-Two insists that their inclusion is part of their historically-accurate portrayal of the era, as referenced in this excerpt below:

"Red Dead 2 is a historically accurate videogame set in the Wild West in the late 1800s. In Plaintiffs' depiction, among numerous other historical elements, they have included references to the historic Pinkerton National Detective Agency and Pinkerton agents, which at that time played an infamous role in law enforcement. Defendants claim to hold trademark rights in the names "Pinkerton Detective Agency" and "Pinkerton," which are used in Red Dead 2."

"Defendants assert that Plaintiffs have infringed those rights by referencing the historical Pinkerton National Detective Agency and Pinkerton agents and using the Pinkerton National Detective Agency's historical badge in the game. By doing so, Defendants ignore well-established First Amendment principles that protect expressive works, like Red Dead 2, from exactly the types of claims that Defendants have lodged against Plaintiffs. Put simply, Defendants cannot use trademark law to own the past and prevent creators from including historical references to Pinkerton agents in depictions of the American West."

Pinkerton had previously demanded royalties for the use of their name, claiming that the game was made to appear as if it had been created in conjunction with Pinkerton. They demanded royalties either in the form of a single payment or ongoing contributions, although Take-Two points out that the agency has been referenced in other forms of fiction in the past, implying that they are trying to profit off of Red Dead Redemption 2's success.

Pinkerton's president Jack Zahran has since offered his own statement to the Verge, talking more about the portrayal of the agents:

"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 also adds that the company now has "to explain to their young game players why Red Dead Redemption 2 encourages people to murder Pinkertons."

While Zahran hopes for an "amicable solution" to the disagreement, it seems both sides have remarkably different views when it comes to the use of the Pinkerton name within Red Dead Redemption 2.

Do you think it's fair use?

Red Dead Redemption 2