Publishing company Pinkerton Consulting and Investigations is suing publisher Take-Two for the numerous references made to Pinkerton agents throughout Red Dead Redemption 2.
Pinkerton Consulting – which secedes the 1850 Pinkerton Detective Agency – issued Take-Two with a cease and desist letter, seeking damages either by way of a lump sum or royalties. Take-Two Interactive responded with a request for a declaratory judgment against Pinkerton, insisting references to the company are protected by the United States’ First Amendment.
"Red Dead 2 is a historically accurate video game set in the Wild West in the late 1800s," Take-Two’s legal filing insists (thanks, Videogamer). "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 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," the defence continues. "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"Put simply, Defendants cannot use trademark law to own the past and prevent creators from including historical references to Pinkerton agents in depictions of the American West."
The filing says that the game’s reference to the historical Pinkerton National Detective Agency and its agents is "but one of a myriad of ways that Red Dead 2 accurately portrays the historical Nineteenth-Century American landscape". It also added that the Pinkertons have already been referenced in a range of other media, including The Long Riders, Deadwood, and Irrational Games’ BioShock Infinite, and the Pinkerton National Detective Agency was "so active in American society during the Nineteenth Century that the term “Pinkerton” entered the lexicon as a term for private detectives".
"Creative works about the American West are permitted as a matter of law to include such real historical events, figures, and businesses," the defence said. "Particularly where there is no likelihood that consumers will be confused about the source of the creative work, trademark owners should not be permitted to use trademark law to harass authors, chill speech, and diminish the historical tenor of works like Red Dead 2. Historical fiction–television, movies, plays, books, and games–would suffer greatly if trademark claims like the Plaintiffs’ could even possibly succeed."