In 2014, Gearbox sued 3D Realms and Interceptor Entertainment over Duke Nukem: Mass Destruction, a top-down action-RPG they were developing without the approval of Gearbox, which acquired the property in 2010. The case was settled a year later, Gearbox was affirmed as the full owner of Duke Nukem, Mass Destruction morphed into Bombshell, and all was well—until last year, when composer Bobby Prince filed suit against Gearbox, Valve, and Randy Pitchford over music he'd written for Duke Nukem 3D, which he claimed was used without permission in the Gearbox-published Duke Nukem 3D: 20th Anniversary World Tour.
Now Gearbox has filed a new lawsuit against Apogee Software (the legal name of 3D Realms) and co-founders Scott Miller and George Broussard that alleges breach of contract in relation to the sale of the Duke Nukem IP a decade ago. Simply but, Gearbox is saying that 3D Realms failed to mention that it didn't own that music when it sold the Duke Nukem rights.
"...Gearbox purchased all intellectual property related to the Duke Nukem video game series (the 'Duke IP') from 3D Realms," the lawsuit states. "In the [Asset Purchase Agreement], 3D Realms represented to Gearbox that the Duke IP was owned free and clear by 3D Realms and that 3D Realms had the right to use the Duke IP 'without payment to a Third-Party.' 3D Realms further warranted in the APA that no copyright was infringed by use of the Duke IP in the Duke Nukem video game series."
According to Prince's lawsuit, he only licensed some of the Duke Nukem music to 3D Realms. If that's the case, then it means 3D Realms failed to deliver Duke Nukem "free and clear" as stipulated in the purchase contract. Gearbox says 3D Realms has also refused to indemnify it against Prince's claims, which was part of the purchase deal.
Gearbox CEO Randy Pitchford told Digital Trends that he believes Prince's claim is legitimate, although it will ultimately be up to a court to make that decision.
"We’re literally in the middle—either Bobby is right and deserves to be paid, in which case 3D Realms is wrong … or 3D Realms is right and Bobby’s wrong," Pitchford said. "And we don’t know. So, we need to bring a judge in and have a look at things from both sides."
The purpose of Gearbox's action is primarily to ensure the company is protected from any costs or judgments arising from Prince's lawsuit, although it also notes that, if it's determined that 3D Realms did not own the contested property when it sold Duke Nukem, Gearbox also "has incurred actual damages equal to the difference in value of what 3D Realms agreed to transfer to Gearbox and what Gearbox actually deserved."
Gearbox is seeking actual damages suffered, as well as legal fees, interest, and whatever "further relief" the court determines is justified. I've reached out to 3D Realms for comment, and will update if I receive a reply.
