3D Realms Sued Over Earth No More

By Maarten Goldstein, Feb 19, 2008 6:32am PST Darin Scott and Edward Polgardy of Cinemagraphix Entertainment have filed a lawsuit against 3D Realms over Earth No More, saying the Duke Nukem Forever developer stole their idea, reports Next Generation.

Announced last year, Earth No More is a first person shooter in development at Recoil Games, produced by 3D Realms. In the game, "a growth of deadly red vines and mutating spores have overtaken the world, perverting whatever they encounter."

That premise, as well as the name 'Earth No More', is pretty much what Scott and Polgardy pitched to several game developers--including 3D Realms--in 2005, according to the lawsuit.

According to the plaintiff, anyone can see similarities between what was pitched and what 3D Realms announced, noting, among other things, a similarity in concept art.

"First of all, the title 'Earth No More' is a title that I haven't been able to find in the title of any intellectual property out there," said the plaintiff's attorney Tre Lovell. "There's no movie, TV show, book, play, anything like that which has the title 'Earth No More'."

Scott and Polgardy are seeking damages under the US Copyright Act, additional statutory damages of up to $150,000 plus attorney fees, and an injunction against the distribution of the game.

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  • First I should say...I don't know any of the people involved. With that out of the way check this out...

    They mention copyright law, but copyright law wouldn't protect them in the bulk of their claims. Copyright, trademark and patent law all work differently...and copyright is in some sense the weakest of the bunch. A copyright does not protect an idea. A copyright only protects the expression of an idea. That's why painters can paint the same scene and even use the same colors. It's also why musicians can write about the same subject or even go as far as having the exact same story line (see country music).

    I see people commenting about if the concept art looks inspired or even too similar. With copyright law...you don't even need to go there. Is it the same piece of artwork or not? If it isn't, it doesn't matter if the artwork depicts the same thing. It would be lame, but it isn't covered under copyright.

    It gets even more silly with the claim to the game design ideas. You couldn't pick a less defendable position. For example...how many WW2 shooters are there? How many that depict the same exact historical events even? If copyright could protect game ideas...we'd have very few games. The people who designed the copyright code knew that and limited it to expression for that very reason.

    The one thing they almost have is the name itself. If they can show that the name was being employed through a reasonable effort in the same kind of business, then yea they'll win that. Reasonable is subjective, but basically spouting off about it in a forum wouldn't fly. The thing is though....it's not worth it. Since the rest of the claim is bogus...no court would ever grant them an injunction...they'd just make them change the name.

    But I said it was something they "almost" have. An expression bearing their title did not get published. Their lawyer says they couldn't find any other reference to that name out there. Their intention was to show that the name was rare (or even unique) and thus unlikely to have been "thought up" by 3DR. An unintentional admission is the fact that the guy doing the claim didn't publish the name either...so what was there to copyright?

    What law covers expressions of ideas that you had, but never documented for the public? A 4th kind....trade secrets. It is usually used to protect inventions that would make weak patents. For example a recipe. Funny thing about them though...if you give up the secret to someone you're not in a relationship that is considered reasonably secure (ie you're not in business with them)...then you lose the protection.

    Anyway you slice it...seems frivolous. Again though...I don't know anyone involved.











  • If 150k is what there after maybe they should have just settled with them to make them go away rather than jeprodize the investment they made in the game.

    On the other hand with the exception of the title the games premise has all been done before and 3DRealms could make a case that like Scott and Polgardy they were inspired by Speilbergs war of the worlds (red vines terra-forming) in fact that movie was mentioned in the PC Zone preview along with the The Thing, Alien and Half Life 2 as inspiration.

    Perhaps Scott and Polgardy refused a lower settlement offer hence the lawsuit.