In Red Dead Redemption 2‘s world, the Pinkerton Detective Agency, a team of detectives hunting down Arthur Morgan and the rest of the Van der Linde gang, is the main antagonist organisation. Now, the real-life Pinkerton company is taking action against Rockstar Games over the way in which Red Dead Redemption 2 uses its name. For its part, Take-Two is claiming fair use with respect to the Pinkerton name.
Court documents discovered by The Blast reveal that Pinkerton Consulting & Investigations–the real detective agency founded in 1850–has issued a cease and desist letter to Rockstar Games and Take-Two Interactive in December.
Pinkerton Consulting said Rockstar had a “clear affection” for Pinkerton by using the name in Red Dead Redemption 2. However, the consulting company took issue with its use in the title because it might have led people to believe the real Pinkerton was involved in the game’s development. Pinkerton is demanding that Take-Two pay an unspecified lump sum fee or a share of royalties in the future.
On the other side, Take-Two says in response that its the use of Pinkertons in Red Dead Redemption 2 is protected under the First Amendment in the United States. “Put simply, [Pinkerton] cannot use trademark law to own the past and prevent creators from including historical references to Pinkerton agents in depictions of the American West,” Take-Two said.
Take-Two fully acknowledges borrowing the Pinkerton name for Red Dead Redemption 2, but says it does is just one of the “myriad of ways that Red Dead 2 accurately portrays the historical Nineteenth Century American landscape.”
The Pinkerton National Detective Agency was a real group that played a major role in American law enforcement in the Wild West in the late 1800s. The US government hired Pinkerton agents to track down people like Jesse James, Butch Cassidy, and the Sundance Kid. Take-Two also reminded Pinkerton that Red Dead Redemption 2 was not the first piece of new media to reference Pinkerton, as the movie The Long Riders, the TV show Deadwood, and the Elton John song “Ballad of a Well-Known Gun” all reference Pinkertons. In the 2013 game BioShock Infinite, the protagonist is a former Pinkerton agent.
Take-Two also points out that the Pinkertons, while a central part of Red Dead Redemption 2’s story, only appear in 10 of the game’s 106 missions. “The inclusion of Pinkertons in the Red Dead 2 story is neither excessive not exceptional,” Take-Two argues.
“Creative works about the American West are permitted as a matter of law to include such real historical events, figures, and businesses,” the company goes on to say. “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 [Pinkerton’s] could even possibly succeed.”
Additionally, Take-Two pointed out that Red Dead Redemption 2 uses Pinkerton’s original name, Pinkerton Detective Agency, and not the company’s current name, Pinkerton Consulting & Investigations Inc.” Further still, Take-Two mentioned that Red Dead Redemption 2 uses Pinkerton’s historical badge, not the current one.
Take-Two said Pinkerton filed its complaint in part because it was trying to profit from Red Dead Redemption 2’s enormous success. Indeed, the game is a huge hit; by Take-Two’s latest count, it had shipped 17 million copies.
Take-Two requests that a judge knock down Pinkerton’s request and deny a trial by jury. What’s more, the video game company wants Pinkerton to pay Take-Two’s legal fees and other expenses related to this case.
Approached for comment, Take-Two told GameSpot, “As a practice, we do not comment on legal matters.” A representative for Pinkerton could not be reached at press time.