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Its like just recently. Atari - flat broke - sold the Ghostbusters European publishing rights to Sony. Atari had bought that from Activision (?) I believe, along with the rights to Riddick - Dark Athena. Those deals have nothing to do with the developers and they wouldn't see a penny of it.
Here is how it probably went down in TT vs 3DR.
1. 3DR signs with GT (then bought by Infogrames) for DNF. My guess is money exchanged hands because there is no way in hell 3DR would give such a lucrative publishing right to GT for nuthin'. Then maybe they did. We won't know until the docs are released under discovery once the suit gets underway.
2. Infogrammes (which later buys Atari btw) gets tired of waiting for the game and decides to bail. So they sell the publishing rights to TT. At $12m - back in 2000 - thats a very hefty premium.
3. Since TT and 3DR have NO contract whatsoever, TT have NO control over what 3DR does with the game. It was fully self-funded by 3DR. So TT had no choice but to sit and wait. They eventually get tired of waiting and write down the $12m in their financials.
4. 3DR spends the better part of twelve years, screwing around with everyone's head, while blowing their own money on the game. Money which they obviously got from other ventures and not excluding whatever they got from GT/Infogrammes when it all started out.
5. 3DR runs out of money. They go to TT - who has the rights to publish the game - and ask for $5m to finish the game. TT says no and in an attempt to cap on their $12m, decided to buy the Duke IP for $30m. Of course its worth more than that, but publishers are righteous bastards and $30m for the Duke IP to a dev looking for $5m is nothing short of a firesale. And an insult. 3DR said no (I wouldn't do it either) and walked.
6. In order to show TT just how serious the situation was, rather than shop the title around - which am sure they did and wouldn't have been successful since TT would never sell the rights since they didn't have to - they knew it was the end of the line.
7. They close shop. Tell everyone to go home. Tell gamers to piss off.
Walked off with a Lifetime Achievement award from Wired mag and called it a day.
8. Take Two sues (as I said they would the very day this news broke). For whatever reason, that is their right.
As I said before, until docs start popping during discovery, my guess is that TT doesn't have a leg to stand on unless the rights they bought from GT clearly holds 3DR - the developer - to some performance standard. My guess is that it doesn't because once those rights were sold, the deal between 3DR and Infogrames probably terminated. If they hadn't terminated, TT would have had 100% say in the on-going development of the game, rather than sitting around and waiting.
So this also meant that whatever money Infogrames paid to 3DR up to that point, they could keep as that is industry norm when you project gets canned or sold off.
In the absense of the above, what I suspect TT is banking on is the promises of delivery and the twelve years of massive hype that 3DR had going. TT could argue that they bought the rights - and waited this long - based on promises (phone, email, marketing, PR, previews, pre-orders, the dog down the street barking Duke's name, some old wino around the corner talking about it etc) made by 3DR and they did so in good faith.
All the judge has to find is that TT bought something in good faith with a reasonable expectation of performance. If he rules on that, TT win. If he doesn't, its over and we'll never see DNF because TT will never release the rights. Lets hope there's no expiration clause. But after this long, my guess is that it is a non-expiring right they bought from Infogrames.
I want to be a fly on the wall in that court room when this goes to trial.
Thread Truncated. Click to see all 40 replies.
That agreement is not really the crux because as I understand it, that one is completely un-related to DNF in so much as development and publishing is concerned. If anything, it would have been related to the G.O.D. shenanigans and the TT buyout. But we'd have to wait for discovery to see whats in it.
If anything - given that GB/SM are not stupid - there is no way in hell they would just up and breach an agreement (2007) regarding DNF and which had a performance clause in it. That would be career suicide to say the least.
By the same token, there is nothing illegal about running out of money and shutting down a project. Companies, games etc get canned all the time and nobody gets sued unless there is an actual "show of cause" implicitly implied. e.g. if TT gave 3DR money to develop DNF, then they took the money and started another venture, went on vacation, hired hookers for office parties etc - that would be cause for action. But if they simply failed (which all indications point to what has happened to DNF) and shut the company down, there is nothing legally actionable about that unless there is evidence of fraud and a clear intent to breach the contract.
Look at it this way, 3DR went to TT for $5m to "finish" the project. TT said "no". 3DR gets shut down. If TT was that interested in the DNF project - and not the Duke IP - they would have agreed to fund it while - for the first time - using that advance to anchor a ball and chain on the development and seeing it to the end. They didn't do that. When the judge hears this and evidence is presented, TT will have quite a bit of explaining to do.
Then again, the other side of the coin is, did TT say "no, piss off" or did they say "ok, we''ll give you the $5m (pocket change really), but we want un-precendented access to the project and everything associated with it" and 3DR said "no, piss off" then took their ball and went home.
TT is holding 3DR to a level of performance - without any meaningful or legally sound actionable cause. Their legal filing clearly shows this and any law student will be able to take it apart with a toothpick during lunch. This action, IMO, is a matter of "punishment" and a notion not unlike throwing mud at a glass window to see what sticks. With this lawsuit - and through discovery - unless 3DR can get it thrown out, TT will have unprecendented access to materials and docs they otherwise wouldn't have because, well, 3DR doesn't owe them anything and have no reason to share anything with them. A lawsuit gets around that - even though the materials can be sealed and thus not openly accessible to the public. In fact, my guess is that's going to be 3DR's first motion [to suppress]. It will go downhill from there. Quickly.
For all the flak that GB+SM have taken over this, not to mention all the armchair attorneys, wanton speculation, spin etc, no dev sets out to do the wrong thing. There is always a reason for why we - as developers and publishers - do the things we do. We don't always get it right, but the reasons why we do the things we do may not make sense to the average Homo Sapien, but thats understandable - especially when you consider that, well, most of us game devs are lots smarter than the average Homo Sapien.
In fact, I posted about this in my latest dev blog
http://www.3000ad.com/aaw/2009/05/developer-blog-10/
What I don't understand is all the nonsense I see on the net where people are acting as if 3DR owed them anything. People love nothing more than a train wreck. If they catch it in progress, so much the better. Most anti-social misfits feed off this stuff like it was their lifeline to an otherwise mundane and less than ordinary life.
There are many - many - studios going out of business, projects getting canned etc. In fact, we just had a similar thing happen to us. I would love to say who (and most devs going through this with this same publisher will immediately understand) but for NDA reasons, cannot. We had this LOI with the publisher (one of those that are having a fire sale and my guess is will be out of business or acquired before long) forever and a day. So we stopped shopping our project around hoping to move from LOI to long form contract in a matter of weeks (standard timeframe). They kept extending it - up to four times in fact. Time to cough up the cash, they balked at putting it in escrow. That raised a Red flag because I wanted assurances that the money would be there even if they went tits up. By the time the dust settled, the deal was dead. Who you gonna sue? I spent every dime of my own money on this (All Aspect Warfare) game over a two year period, have it 99% completed etc. All that was needed was an XB360 publisher since we can't self-publish at retail and XBLA (where we can self-publish) is shit. So we went looking for an approved publisher. Then, the deal died - once again putting the XB360 version in jeapardy. A situation that is worse now more than ever because if we release the PC version (going Gold on June 9th) first, we essentially kill the XB360 version because a) no publisher will sign a console title with a PC lead-in b) MS won't even approve it once the PC version is out first. Not to mention that the XB360 version is four months from completion and was lagging behind the PC version because I took the the worse scenario initiative and decided to focus on the PC version so that we had a finished product to ship in the event that we couldnt' find a good console publishing deal.
This stuff happens all the time. Nobody is suing anybody because a performance lawsuit is the most difficult thing to get past a judge - let alone a jury. Every single attorney knows this. And if thats TT's strategy (though I don't think it is), then I hope they get a judge who can see right through it and just shoot them down because it is clearly without merit. You can't go suing for performance after siting around for almost eight years with nothing more than promises and goodwill. Even under the law, good faith can only go so far. No, my guess is that TT just wants to see what 3DR actually has and also punish 3DR for whatever reason. There is nothing else here other than that.
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