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3D Realms Responds to the Take-Two Lawsuit to tell their side of the story

When Duke Nukem Forever was officially cancelled, it made news because the game had been in development for more than 12 years and was a follow-up to the popular 3D video game released by 3D Realms in 1996. In response to the failure of Duke Nukem Forever, Bloomberg is reporting Take-Two Interactive is suing Apogee Software Ltd.’s 3D Realms for breaching an agreement to design the latest installment of the Duke Nukem series.  

Take-Two described how they felt they were misled stating, “Apogee continually delayed the completion date for the Duke Nukem Forever.” They also stated, “Apogee repeatedly assured Take-Two and the video-gaming community that it was diligently working toward competing development of the PC Version of the Duke Nukem Forever.”  These statements blame 3D Realms for the failure of Duke Nukem Forever.

Take-Two holds the publishing rights for the Duke Nukem sequel and Apogee Software Ltd.’s 3D Realms was the developer. In the Bloomberg article, it was initially reported Take-Two paid $12 million for the publishing rights to the Duke Nukem sequel in 2000. In 2007, a second agreement was apparently signed.

As in any story there are always two sides and 3D Realms have responded to Take-Two’s lawsuit; the response is summarized in a Shacknews article. 3D Realms claims that they did not receive a single payment until 2008. They stated, “Take-Two never paid 3DR advances or any signing bonus or any other funds related to DNF, up until July 2008, at which time they paid $2.5m in connection with another agreement for an unannounced game," added the company. "This is the sum total Take-Two has paid 3DR in connection with DNF."

3D Realms also claims Take-Two offered 3D Realms a "last minute" proposal to acquire the Duke Nukem franchise and the development team. This offer was refused because deal included "no upfront money, no guarantee minimum payment, and no guarantee to complete the DNF game."

Also clarified in the Shacknews article is the fact Take-Two retains the publishing rights to Duke Nukem Forever in the aftermath of the meltdown. Although the future of Duke Nukem Forever is up in the air, the franchise may not be completely dead as 3D Realms stated they have not completely closed, saying that it is now planning to "regroup" as a company. 3D Realms released a statement stating, "While 3DR is a much smaller studio now, we will continue to operate as a company and continue to license and co-create games based upon the Duke Nukem franchise."

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come on!!!!!!
By nerdboy on 5/19/2009 8:52:09 AM , Rating: 5
Instead of wasting money on suing each other put the money in to developing the rest of the damn game.

RE: come on!!!!!!
By Golgatha on 5/19/2009 8:55:27 AM , Rating: 2
No kidding. Not to mention it's like trying to get blood from a rock. Sure you can get a judgement, but can you collect?

RE: come on!!!!!!
By HVAC on 5/19/2009 12:43:38 PM , Rating: 5
By the time the game is finished, Duke will be pummeling the bad guys with his walking frame and getting pissed whenever his dentures fall out.

RE: come on!!!!!!
By ipay on 5/19/2009 4:32:00 PM , Rating: 2
I nearly fell off my chair laughing at the mental image that evoked. Reminded me of the VG Cats cartoon with an aged Solid Snake.

RE: come on!!!!!!
By jadeskye on 5/29/2009 12:09:46 PM , Rating: 1
it's time to kick ass and chew...oh shit...

RE: come on!!!!!!
By Lifted on 5/19/2009 9:06:47 AM , Rating: 5
put the money in to developing the rest of the damn game.


oh god, i can't breath.

RE: come on!!!!!!
By Smilin on 5/19/2009 10:17:19 AM , Rating: 3
Yeah, if we had only given Enron some bailout money I'm sure they would be successful today. :P

RE: come on!!!!!!
By djkrypplephite on 5/19/2009 11:20:26 AM , Rating: 5
Hey, we already subsidize everything else. $25 million to improve ATV trails? Why can't Obama make Duke Nukem happen?

RE: come on!!!!!!
By therealnickdanger on 5/19/2009 11:53:26 AM , Rating: 4
LOL yeah! At least with DNF, some or all of the money could be PAYED BACK rather than just thrown away.

RE: come on!!!!!!
By arsmitty86 on 5/19/2009 1:36:00 PM , Rating: 2

RE: come on!!!!!!
By Spoelie on 5/19/2009 9:21:34 AM , Rating: 2
1) How come take-two legally has the publishing rights of DNF when they did not pay for it. This seems like an example of "Exceptio Non Adimpleti Contractus"

2) Negotiated 12 million for the rights, of which 2.5 million (or nothing) paid, there's still 9.5 (or 12) million left. If earlier reports are correct and there's only 5 million (or a figure in that ballpark) needed to complete DNF, then Take-Two would actually be able to publish the game if they paid for publishing the game, geddit?

This is all assuming 3DR is telling the truth.

Either way, the 5 million is probably assuming the "current" team completes it, any other team would take longer since it is not familiar with the project.

RE: come on!!!!!!
By Digimonkey on 5/19/2009 9:47:07 AM , Rating: 2
Take two bought the company that had the publishing rights to DNF, from my understanding it was an indirect purpose of rights to publish. DNF was just part of the pie. Although that company had paid 3Drealms for publishing rights in the order of $400,000. A far cry from $12 million.

It almost seems like Take Two is purposely trying to screw 3D Realms out of the Duke Nukem IP. It was a good tactic and can't blame them, or feel sorry for 3D Realms since it has been 12 years and no game.

In the end though the fans suffer. The game will be delayed more if not indefinitely, and Take Two loses it's investment, but they already wrote it off long ago.

RE: come on!!!!!!
By Smilin on 5/19/2009 10:16:07 AM , Rating: 5
1.) They did pay for it. You can't just get out of your house payment because your lendor sold the loan.

Either way, the 5 million is probably assuming the "current" team completes it, any other team would take longer since it is not familiar with the project.

That is the normal common sense and under any other circumstances I would agree.

In this case I couldn't disagree more. Given their track record a team of monkeys could finish this thing before 3DR. If they want this thing finished it would need handed over to another team. One of the big mod developers like Raven or someone would rip through this thing.

RE: come on!!!!!!
By BBeltrami on 5/19/2009 9:38:18 AM , Rating: 5
Call me crazy, but the whole episode seems like a break from reality. In the first place, DNF's development has been the butt of jokes for years. That this is only happening now is incredible.

3DR, even though they've been working on the game since '96, claim they don't have product because they weren't paid 4 years later (9 years ago). Yea, THAT makes sense. (But I bet the employee refrigerators were well stocked and the office space is top notch.)

Meanwhile, TT is SO UNCONCERNED about their guaranteed franchise that they ignore the game's development and don't bother to check on 3DR's progress for the last 13 years... and NOW are going to sue for breach. (Hey, way to pay attention, fellas!)

Carmack could have programmed DNF on a 3-day weekend.

RE: come on!!!!!!
By adiposity on 5/19/2009 11:21:28 AM , Rating: 3
Carmack could have programmed DNF on a 3-day weekend.

I realize this was hypberbole, but Carmack designs 3d engines, not games. And the engine part of DNF (although it has changed several times) was not even a primary part of their task. The art, models, scripted events, interactivity, voice recording, level design are what has taken so long (combined with obviously poor management decisions to allow the lack of focus towards finishing).

Considering how terribly boring, poorly designed, catastrophically plotted, and horribly voice-acted Doom3 was, I think I prefer the 12 years of hype followed by no release to having Carmack's Doom3 team touch it. The Doom3 engine is cool; the game, however, sucked.

I'd give this to Raven, they know how to finish things and they produce decent products in the FPS world. That's if it's worth finishing at this point.


RE: come on!!!!!!
By Regs on 5/19/2009 5:02:39 PM , Rating: 2
I thought this was part of the game.

Well at least they got the name right....
By callmeroy on 5/19/2009 9:11:20 AM , Rating: 3
As I think about the 12 year history of the game that wasn't, and now I think of the pending law suit over it....They did get one thing right....the name. "Duke Nukem FOREVER ...."...

RE: Well at least they got the name right....
By Lifted on 5/19/2009 9:17:25 AM , Rating: 3
Don't let anyone ever tell you're not slow.

By callmeroy on 5/19/2009 10:32:03 AM , Rating: 2
Well apparently you are slower than me, with the wording of that sentence, I guess we are even now.... :)

RE: Well at least they got the name right....
By dani31 on 5/19/2009 9:29:57 AM , Rating: 5
The acronym is also quite appropriate... DNF

By inperfectdarkness on 5/19/2009 9:36:27 AM , Rating: 2
that's DID NOT FINISH...for those of you not awake yet.

By Mojo the Monkey on 5/19/2009 12:27:06 PM , Rating: 3
Looked more like a DNS to me.

By Thorburn on 5/19/2009 9:43:27 AM , Rating: 3
At this rate DNR would probably be more accurate :)

By SublimeSimplicity on 5/19/2009 9:56:37 AM , Rating: 5
I came here to make a post and chew some bubble gum!!

Since you've already posted the comment I wanted to, I'll just chew this bubble gum in the corner. Carry on everyone.

They SHOULD sue them.
By Smilin on 5/19/2009 10:10:38 AM , Rating: 4
They had a contract.

Take two bought the rights to DN
They paid 3D realms some large initial sums.
They agreed to pay the cost of publishing when the game was complete.
3D realms signed the deal and took take two's money.

I know we would all like to see DN get released but why is everyone having such a hard time understanding this.

The other option is for take two to pay for continued development costs to get Duke 3D out the door. I know because of our emotional attachment we would like to see this happen but it makes 0 business sense whatsoever.

First, Take two entered this deal with an idea of what money they would have to pay to publish and an estimate of what money they would make. Now to continue on the deal would change the upfront cost drastically and become less attractive.

Second, 3D realms has made abundantly clear that they are incompetent. They couldn't make the game in 12 years when they knew their own asses were on the line. Why would take two expect things to change when they were working for someone else money and didn't have their own butts on the line? A wise investor would not accept such risks.

Third, A deal is a deal. I wouldn't expect them to enter into a new deal with some party who has failed to live up to the first deal.

Take two is NOT the bad guy here. The incompetent zealots at 3D realms are.

RE: They SHOULD sue them.
By adiposity on 5/19/2009 11:34:36 AM , Rating: 1
You have not seen the contract, you don't know what was guaranteed and what wasn't. Take-two apparently retains the publishing rights to the game. However, those rights do not include owning the IP just because they are unhappy the game didn't come out.

I can understand why Take-two is upset. But unless they had a guarantee the game would be finished (by a self-funded studio), I'm not sure they have any recourse. They could argue bad faith if the publishing rights were sold without intention to release the game. But in spite of 3drealms horrible management and long dev. cycle, we do not have any evidence they had any intention other than to release the game.

It does sound like they tried to extort a bit of money from Take-two at the end to pay for more dev. time. Take-two wasn't buying it, probably sick of the whole thing by that time. But this was not illegal, it probably was just the reality that the studio had no money left and went to the most interested party to see if they could help.

Take-two's response is, "we got so screwed on this deal, we should be allowed to own the game we previously only had publishing rights to." I seriously doubt the contract provides for that. All assumptions when that contract was made were that the game would come out. It didn't, and unless it does, their publishing rights are worthless.

Sucks for them, but that's what they bought, not the right to own 3drealms IP.


RE: They SHOULD sue them.
By Smilin on 5/19/2009 11:38:48 AM , Rating: 3
No I have not seen the contract. I bet I can sum it up for you though:

You make game.
We publish game.
Both parties sign here.

Best intentions do not count. "You make game"

RE: They SHOULD sue them.
By adiposity on 5/19/2009 12:36:35 PM , Rating: 2
Based on your summation of the contract, you are right. But, you don't know they guaranteed they would finish the game.

If a company agrees to provide something at a certain price, and they don't provide it, the recourse is usually to not pay the price. 3drealms was not paid the finishing fee, and they never will be unless they finish. Take two's "rights" to publish have not been violated.

What did Take-two give in exchange for the guarantee the game would be finished? You don't agree for nothing.

You make game.
We publish game.

You not make game?
We not publish game :(


RE: They SHOULD sue them.
By Smilin on 5/19/2009 1:28:08 PM , Rating: 2
What did Take-two give in exchange for the guarantee the game would be finished?


Although take two did not pay for the full development of the game significant amounts of money were given to 3DR.

RE: They SHOULD sue them.
By adiposity on 5/19/2009 5:15:22 PM , Rating: 2

As some of you may know, Take-Two filed a lawsuit last week containing various accusations and claims against 3DR and the uncompleted DNF game. Take-Two never paid 3DR advances or any signing bonus or any other funds related to DNF, up until July 2008, at which time they paid $2.5m in connection with another agreement for an unannounced game.

I don't know if this is true or not. But if it's true, that money had nothing to do with DNF. Thus, it's irrelevant to the lawsuit.


RE: They SHOULD sue them.
By Smilin on 5/20/2009 1:54:35 PM , Rating: 2
Take two also payed 12 million dollars for the right to publish DNF. I guarantee they didn't pay $12m for the right to "publish DNF should 3DR get around to making it". Contracts just aren't written that way.

The details of the contract will come out in the court case. I'm betting TT is going to wipe the floor with 3DR on this.

Broussard is lacking some credibility right now.

RE: They SHOULD sue them.
By adiposity on 5/20/2009 5:16:24 PM , Rating: 2
The 12 million dollars were not paid to 3dr. They were paid to GT interactive, who paid 3dr only $400k for a signing bonus originally.

I see your point, though. Why pay $12 million with no guarantees? Just because it would have been a bad choice doesn't mean it didn't happen. We just don't know what the contract said. The TT contract was not with 3dr, but with Infogrames (who bought GT interactive).

Whatever GT agreed to was apparently worth 400K. At that stage, given the popularity of Duke, 400K could have seemed like it was worth getting to publish the next Duke game. Requiring the game to be finished isn't really much of a guarantee. 3DR could have published something in 6 months if they wanted. They could release what they have today.

You may be right, the contract may have said, "if you never finish the game, you have to pay this bonus back." But even if it said that, the number would be 400K, not 12 Million. TT perceived that the value of the publishing right was 12Million, but that's not 3dr's problem. They only got 400K (supposedly). And we don't even know if the signing bonus was conditional on the game being finished.


join in?
By Alphafox78 on 5/19/2009 8:47:43 AM , Rating: 5
Can I join the lawsuit on behalf of my pentium 133, she died of a broken heart before it was her time.

RE: join in?
By Belard on 5/19/2009 9:39:10 AM , Rating: 2

we should all sue 3DR for the pain and suffering and waste of life giving a crap about vapor ware.

There's a "Legend" out there...
By V3ctorPT on 5/19/2009 1:32:04 PM , Rating: 2
Some people say that the Halo's Masterchief is in fact Duke... And that all the Halo games we played, we were in fact DNF but in chapters...
It seems that there's a hidden part of the game in Halo 3, that Masterchief gets his helmet off and shows that he is in fact Duke Nukem... Does anyone knows anything about this?

That's some f***ed up $hit... :|

RE: There's a "Legend" out there...
By kkwst2 on 5/19/2009 3:14:23 PM , Rating: 2
Perhaps someone never explained it to you. Just because comic strips are in the newspaper doesn't make them news.

By V3ctorPT on 5/19/2009 8:35:13 PM , Rating: 2
Tried to make a joke... didn't work... nevermind... :P

The jokes live on
By grandpope on 5/19/2009 11:51:18 AM , Rating: 3
It's true, this game refuses to die! Not even 3DRealms canceling the project can kill it!

RE: The jokes live on
By Joz on 5/19/2009 4:50:09 PM , Rating: 2
Exept when some random software company somewhere out there decides to jump on the trigger-happy-I-Going-to-Sue-Someone waggon, and decides to sue anyone that tries to complete/opensource/finish the game and say that they "own" all his catch phrases now.

There has got to be...
By Motoman on 5/19/2009 10:19:37 AM , Rating: 1 assload of game content that's sitting there from 12 years of development.

Clump it together and put it on a CD. Somebody release it as "Duke Nukem Whenever" and make money from it. It would sell like iced tea in hell almost no matter what the actual content was.

Then use those funds to finish the real thing.

Problem solved. I'll send you a bill for my expert advice.

RE: There has got to be...
By aguilpa1 on 5/19/2009 10:47:44 AM , Rating: 2
Naw at this point I wouldn't buy it maybe torrent or warez it but not cash...

who cares let it die
By rudy on 5/19/2009 10:32:09 PM , Rating: 2
Honestly I am glad they went bankrupt and I hope that this finally kills the game. Although I am sure it will not. After 12 years of hearing about this and it never coming out I know for sure one thing. DNF if it ever releases will be an utter disappointment. It is simply not possible for it to live up to the hype they have built not if a team to incompetent to get anything done in 12 years is working on it.

This just in:
By Ozziedogg on 5/20/2009 2:44:04 AM , Rating: 2
3drealms just announced they had signed on Chuck Norris to play Duke in the live action movie. When quizzed on the release date of the movie, they replied "when its done."

12 years, lol
By overlandpark4me on 6/12/2009 8:05:51 PM , Rating: 2
Think of what happens to a game in 2 years, never mind 12. Take 2 should just slap themselves in the head for letting themselves get strung along like a girlfriend promising to put out.

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