Legal battle erupts over Fallout IP

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By Ryan Burns

Two big name game companies are entangled in a legal battle over who has the right to Fallout's Intellectual Property, or IP. Suits and countersuits have been filed between all parties involved, and things are just heating up.

Any of the millions of people who played Fallout 3 could probably name the company behind the game: Bethesda Softworks. Gamers who followed the series prior to that know the franchise creator: Interplay. Why does it matter that the IP changed hands?

Interplay recently planned to make an MMORPG based on the Fallout universe, which it had the right to do until the legal fight began in April. It also reportedly continued to sell and repackage older Fallout games without permission.

The packages, which were named "Saga Fallout" and "Fallout Tactics" included Fallout, Fallout 2, and Fallout Tactics. Under their agreement, Interplay had to receive Bethesda's permission for such packages, which Bethesda claims never happened. The name "Fallout Trilogy," according to Bethesda, was deliberately misleading consumers into thinking the package contained Fallout 3.

Interplay also reportedly sold Fallout products through GameTap, Good Old Games and Steam without Bethesda's permission.

Bethesda is suing, not seeking money, but the return of profit from Fallout games sold by Interplay without permission. Also, it wants the court to formally declare that Interplay no longer has any right to the Fallout brand whatsoever.

In a separate situation, Interplay employed Glutton Creeper Games to craft a pen-and-paper RPG based on the original Fallout RPGs. Subsequently, Interplay got sued again. Not by Bethesda, but by Glutton Creeper.

Glutton Creeper was unaware of the state of the IP, but when Bethesda sent a cease and desist order, it learned. The resulting legal fees put further financial hardship on Interplay, which had already been financially troubled.

Interplay is now countersuing Bethesda, stating that Interplay still had the right to petition Glutton Creeper to make the pen-and-paper RPG. Moreover, Interplay wants a legal declaration stating that it continues to own licensing rights for the first two Fallout games.

What's more, and this is the real kicker, Interplay wants the purchasing agreement from 2007 that sold the Fallout rights to Bethesda utterly rescinded. As a result, all Fallout rights would be returned to Interplay. As a bonus, Interplay wants to be awarded royalties it would have been due under a previous contract that only licensed Bethesda to create Fallout games, not own the IP.

Interplay is swinging for the fences with this lawsuit. If everything goes according to plan, Interplay will again own the Fallout IP, get $15 million in royalties and the right to make whatever Fallout games it wants. Bethesda is sure to put up strong opposition, however. Profits from games like Fallout 3 and Elder Scrolls IV would buy some damn good lawyers.

Originally Published: Issue 822 - November 4, 2009

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