Bethesda fires back against Interplay

[King of Creation]

<strong>[ Company -> Update ]</strong> - More info on <a href="http://fallout.wikia.com/wiki/Bethesda v. Interplay">Company: Bethesda v. Interplay</a>

<p>DAC <a href="../../forums/viewtopic.php?t=24947">reported</a> earlier that Bethesda is now claiming that, with regards to a Fallout MMO, Interplay was only ever given the right to use the name Fallout. They were not, however, allowed to use any of the elements of that Fallout world, Bethesda claims.</p>
<p>Interplay filed a motion claiming that such a claim was ridiculous. Now, DAC has obtained Bethesda's counter of Interplay's counter (yay legal system). Here are the highlights from the filing:</p>
<blockquote>
<p><em>By the terms of the TLA, Bethesda agreed to license to Interplay the right to use one single asset &ndash; the FALLOUT mark &ndash; subject to certain conditions for use in branding an MMOG. (See Bethesda Mem. at p. 5.) There is no contractual or other duty of Bethesda to allow Interplay to use any other Fallout copyrights, trademarks or other assets that Interplay sold without reservation in 2007.</em></p>
<p><em>...</em></p>
<p><em>Bethesda gave Interplay a license to call its MMOG &ldquo;Fallout&rdquo;...Nothing else was licensed to Interplay.</em></p>
<p><em>...</em></p>
<p><em>Even though Interplay sold Bethesda all right, title and interest in all Fallout intellectual property assets for $5.75 million, Bethesda agreed that Interplay could develop, under certain conditions, a &ldquo;FALLOUT-branded MMOG.&rdquo; TLA &sect;&sect; 2.1. To memorialize the agreement, and in particular the single trademark license, the parties executed the TLA as an exhibit to the APA. It is undisputed that the TLA involves but one single intellectual property asset &ndash; the FALLOUT trademark &ndash; and nothing more.</em></p>
</blockquote>
<p>I'm not a lawyer, but this seems absolutely ridiculous to me. It most certainly violates the <a href="http://en.wikipedia.org/wiki/Implied_co ... >convenant of good faith</a>. Bethesda, at the time of the contract signing and up until Bethesda lost the initial rounds of the court battle, never informed Interplay that it would be only allowed to use the name. The contract itself certainly does not make mention of this fact, so I would assume that the court will not entertain the idea.</p>

[Alister McFap II Esq.]

If Interplay could manage to make a half decent MMO (questionable) nobody would give a shit about the future Bethesda Fallouts.

It'd be fun to watch, but let's be realistic...

[Haris]

I am so getting a new gameseries to become a fan off instead. Both Bethesda and Interplay are idiots and i hate giving money to them. To bad obsidian made fallout good again with new vegas otherwise i would not care about fallout at all.

[Frater Perdurabo]

Even though Interplay sold Bethesda all right, title and interest in all Fallout intellectual property assets for $5.75 million, Bethesda agreed that Interplay could develop, under certain conditions, a “FALLOUT-branded MMOG.� TLA §§ 2.1. To memorialize the agreement, and in particular the single trademark license, the parties executed the TLA as an exhibit to the APA. It is undisputed that the TLA involves but one single intellectual property asset – the FALLOUT trademark – and nothing more.

Well you've got it right there. I haven't read the contract but if all that Interplay owns is the trademark then they have no right to use the rest of the Fallout world (or at least the parts owned by Bethesda) in their product.

Thus, Interplay has the right to use the name "Fallout" in their product. If they don't own copyright relating to stuff like "Nuka Cola" then they are not allowed to use them.

Of course, I am not aware what the "under certain conditions" involves. Is the contract available somewhere by the way? Probably not since we've only relied on court filings thus far, right?

[King of Creation]

They sold all of it, sure. But they retained the right to make the MMO, utilizing all aspects of the Fallout universe. Bethesda now seems to be backtracking due to their court losses, trying to craft new ways to scupper the game. They knew about the supermutants and all that from the screenshots and concept art that was released, but they're only now making this claim...seems like a clear violation of the covenant of good faith to me.

[Frater Perdurabo]

They sold all of it, sure. But they retained the right to make the MMO, utilizing all aspects of the Fallout universe.

Explain how that makes sense. They couldn't possibly have sold all rights and then have retained rights to all.
In other words, you cannot sell the rights to certain elements in a computer game and then retain the rights to certain elements in a computer game.

A trademark grants very limited rights. In this case, it is essentially the right to make a product and call it Fallout. A trademark doesn't give anything more than that.
What is inside the product is protected by the laws of design and of copyright. If Interplay sold those - which it most likely did - then they have no rights to use elements from the Fallout universe. A trademark doesn't give you those rights.

Now this is subject to two things:
1) What the contract says.
2) What was protected in the first place. Are the super mutants of Fallout protected by copyright? Possibly but also quite unlikely. It's too generic. It's more likely that terminology like New California Republic, Nuka Cola, FEV and Stimpak are protected.

A certain setting, i.e. like that of a post-apocalyptic world is not in itself protected by copyright, it cannot be, it is too generic. What you can protect is specific terminology and look referring to a certain merchandise, like the aforementioned examples. It is thus most likely that Interplay has retained the rights to make a MMO in a post-apocalyptic setting and call it Fallout. Unless it has copyright to things like Stimpaks, it cannot use them in the game. An easy way for Interplay to get beyond all of this is to relocate and have their game take place in, say Central America or perhaps Urop. They can start again fresh without infringing on now Bethesda's IP rights. There probably is no bad faith on part of Bethesda, it's just protecting its rights.

[SenisterDenister]

Don't even care any more.

[King of Creation]

They sold all of it, sure. But they retained the right to make the MMO, utilizing all aspects of the Fallout universe.

Explain how that makes sense. They couldn't possibly have sold all rights and then have retained rights to all.
In other words, you cannot sell the rights to certain elements in a computer game and then retain the rights to certain elements in a computer game.

A trademark grants very limited rights. In this case, it is essentially the right to make a product and call it Fallout. A trademark doesn't give anything more than that.
What is inside the product is protected by the laws of design and of copyright. If Interplay sold those - which it most likely did - then they have no rights to use elements from the Fallout universe. A trademark doesn't give you those rights.

Now this is subject to two things:
1) What the contract says.
2) What was protected in the first place. Are the super mutants of Fallout protected by copyright? Possibly but also quite unlikely. It's too generic. It's more likely that terminology like New California Republic, Nuka Cola, FEV and Stimpak are protected.

A certain setting, i.e. like that of a post-apocalyptic world is not in itself protected by copyright, it cannot be, it is too generic. What you can protect is specific terminology and look referring to a certain merchandise, like the aforementioned examples. It is thus most likely that Interplay has retained the rights to make a MMO in a post-apocalyptic setting and call it Fallout. Unless it has copyright to things like Stimpaks, it cannot use them in the game. An easy way for Interplay to get beyond all of this is to relocate and have their game take place in, say Central America or perhaps Urop. They can start again fresh without infringing on now Bethesda's IP rights. There probably is no bad faith on part of Bethesda, it's just protecting its rights.

From Interplay's point of view, they entered the contract not on the basis of creating an MMO called Fallout, but rather on the basis of creating an MMO in the Fallout universe. Bethesda agreed in substance to this initially, but are now pursuing this avenue because of their court losses - hence how they broken broken the covenant of good faith.

[Mehar]

Err, aren't they pretty much re-stating what they said in their argument a few weeks ago which Interplay countered a few days ago?

[Frater Perdurabo]

From Interplay's point of view, they entered the contract not on the basis of creating an MMO called Fallout, but rather on the basis of creating an MMO in the Fallout universe. Bethesda agreed in substance to this initially, but are now pursuing this avenue because of their court losses - hence how they broken broken the covenant of good faith.

What they agreed on is in the contract, but retaining rights to create an MMO in the Fallout universe requires A LOT more than a simple trademark.
Think about it this way - what exactly did Interplay sell to Bethesda? It seems that they sold all IP rights to the Fallout universe, with the exception of reserving the right of being able to make a MMO labelled Fallout (the trademark). If they wanted to use elements of Fallout in this MMO then they need further IP rights.
The bottom line is what the contract says. I'd love to get my hands on that now actually.

[Ausir]

Bethesda claims that they hadn't made the claim about Interplay not having the rights to use any Fallout assets aside from the name before now because "Bethesda only recently learned of Interplay’s multiple infringements from Interplay’s public marketing materials". Even though actually the public materials, which were, by the way, first released over 6 months ago, definitely weren't the first use of Fallout assets that Bethesda knew of. The following proof of concept Fallout Online screenshots were admitted as evidence in this very case already in 2009:

http://fallout.wikia.com/wiki/File:Proj ... nshot1.jpg
http://fallout.wikia.com/wiki/File:Proj ... nshot2.jpg
http://fallout.wikia.com/wiki/File:Proj ... nshot3.jpg

And they show super mutants and a Nuka-Cola sign.

[Mehar]

Bethesda claims that they hadn't made the claim about Interplay not having the rights to use any Fallout assets aside from the name before now because "Bethesda only recently learned of Interplay’s multiple infringements from Interplay’s public marketing materials". Even though actually the public materials, which were, by the way, first released over 6 months ago, definitely weren't the first use of Fallout assets that Bethesda knew of. The following proof of concept Fallout Online screenshots were admitted as evidence in this very case already in 2009:

http://fallout.wikia.com/wiki/File:Proj ... nshot1.jpg
http://fallout.wikia.com/wiki/File:Proj ... nshot2.jpg
http://fallout.wikia.com/wiki/File:Proj ... nshot3.jpg

And they show super mutants and a Nuka-Cola sign.

Can you clarify the infringement thing? Are you saying Bethesda would have know of any infringement occurring in 2009 when the case was first filed or later on when the Fallout Online website was launched?

Assuming Bethesda learned of it through materials submitted through court, is that grounds for a lawsuit? Isn't anything stated in a court of law protected from litigation, at least to a certain extent?

[Ausir]

Bethesda is saying that they never knew that Interplay has been using Fallout assets/elements of the Fallout universe and not just the name until they learned it recently when Interplay launched the Fallout Online website in 2010. Which, if you look at the screenshots, which were known to Bethesda in 2009, is pure bullshit.

[Alister McFap II Esq.]

It's like selling your kid to slavers and still being forced to pay aliments.

[King of Creation]

Kharn put it well:

Guys, seriously, this is a transfer of a license which always implies transfer of related assets except where specifically void.

[hoochimama]

Bethesda only managed to make a fallout game in name only, so they want interplay to do the same.

[Frater Perdurabo]

Hoochimama put it well:

Bethesda only managed to make a fallout game in name only, so they want interplay to do the same.

[Kashluk]

Hoochimama put it well:

Bethesda only managed to make a fallout game in name only, so they want interplay to do the same.

Quote of the Year and it's only January. Way to go, bro

[St. Toxic]

Bethesda only managed to make a fallout game in name only, so they want interplay to do the same.

What he said.