Activision sues to stop release of Brutal Legend

[ThunderPeel2001]

Good lord!

A lawsuit filed by Activision may keep Jack Black from becoming a "Brutal Legend" later this year.

Activision Entertainment Holdings Inc. sued game developer Double Fine Productions Inc. on Wednesday to try to stop the release of "Brutal Legend" by rival Electronic Arts.

The lawsuit, filed in Santa Monica, Calif., on Wednesday, claims Double Fine failed to deliver "Brutal Legend" on time [in 2008]. The suit also claims the firm then offered the completed game to EA.

"Brutal Legend" is scheduled for release in October. It features Black as a heavy-metal roadie transported to a mythical ancient world to fight evil.

EA has been heavily promoting the game at this week's Electronic Entertainment Expo in Los Angeles. A gigantic banner of Black's character, Eddie Riggs, is hanging outside the convention's venue.

The lawsuit claims Activision paid Double Fine about $15 million to develop "Brutal Legend," but the studio missed a key deadline last year. The suit claims Double Fine then said it would need another nine months and $7 million to complete the game.

Activision and Double Fine negotiated to try to keep the game on track, but no agreement was ever reached, according to the court filing. Activision contends it never relinquished its rights to the game and that Double Fine improperly transferred "Brutal Legend" to EA.

"Hey, if Activision liked it, then they should have put a ring on it," Double Fine President Tim Schafer said. "Oh great, now Beyonce is going to sue me too."

The lawsuit states that Activision has suffered "irreparable harm" and will lose not only the game, but also the ability to sell downloadable content based on "Brutal Legend" if the release isn't stopped.

EA, which is not named as a party in the lawsuit, had no official comment on the filing.

Tim Schafer had this to say:

"Hey, if Activision liked it, then they should have put a ring on it. Oh great, now Beyoncé is going to sue me too."

Any of you within the industry know of this happening to a game in the past/any idea what's likely to happen?? I can't understand HOW this could happen... If DoubleFine failed to produce a finished game on their agreed deadline, then surely they would have been in breach of contract?

[syntheticgerbil]

The lawsuit claims Activision paid Double Fine about $15 million to develop "Brutal Legend," but the studio missed a key deadline last year. The suit claims Double Fine then said it would need another nine months and $7 million to complete the game.

Correct me if I'm wrong, but Brutal Legend already had development started before it even had a publisher, right? The publisher would have been Sierra, who I am assuming sunk the $15 million into it, not Activision. Activision bought Sierra/Vivendi out and canceled a bunch of games that were going to be published. How is any of this according to a milestone Activision set?

What really bugs me, which I'm hoping the court that this lawsuit goes to will see is:

1) Brutal Legend was in development before and after Sierra and Activision, how can it possibly be allowed for the publisher to shut down all development and basically put Double Fine out of business? Aren't they at liberty to find another publisher? What kind of contract did they sign with Sierra that does not allow them to transfer publishing rights unless the publisher says it's okay? Microsoft didn't make a stink when Psychonauts went to Majesco and I think Microsoft spent more than $15 million on the development. I'm sure Double Fine sunk more than $15 million themselves into Brutal Legend's development.

2) If there was really a problem, is it fair for Activision to have waited nearly a year before actually saying anything? Especially when the game is ramping up to be successful? Seems to me like they were okay with it finding another publisher until it became apparent that Brutal Legend will probably turn out to be a monetary success. I'm guessing they are looking for some out of court settlement money from EA.

[Nick]

Activision isn't currently my favorite company, heh. What with also having previously dropped Ghostbusters and their 'not enough demand for a G1 Transformers game' nonsense. They seem to want the exact opposite of everything I do want.

[ThunderPeel2001]

I'm guessing they are looking for some out of court settlement money from EA.

Or a chunk of the profits. The gaming industry seems so weird... Why on earth would a publisher sink millions into a game and then not bother releasing it?? I guess the acquisition makes this a bit of a grey area... Was there really a deadline? Who set it? Do deadlines becomes acquired, too?

I'd love for some of our industry-related Thumbs to explain this whole thing!

[zomboid]

I'd offer to boycott Craptivision - but to do so would imply they had something for sale that I wanted but forced myself not to buy.

[elmuerte]

Electronic Activision \o/

[Horticulture Tycoon]

Or a chunk of the profits. The gaming industry seems so weird... Why on earth would a publisher sink millions into a game and then not bother releasing it?? I guess the acquisition makes this a bit of a grey area... Was there really a deadline? Who set it? Do deadlines becomes acquired, too?

I'd love for some of our industry-related Thumbs to explain this whole thing!

This isn't exclusive to the gaming industry, the Watchmen movie was pretty much in the exact same situation this time last year. And as I recall, Warners had to pay 20th Century Fox a huge chunk of cash plus give them a significant percentage of the gross. I wouldn't be surprised if we end up with a similar outcome here.

[Udvarnoky]

Microsoft didn't make a stink when Psychonauts went to Majesco and I think Microsoft spent more than $15 million on the development.

In fact, Microsoft even insinuated that it would help Double Fine find a new publisher:

Microsoft Game Studios has made the decision to end its publishing agreement with DoubleFine for the upcoming Xbox game 'Psychonauts.' Microsoft Game Studios believes in the vision of the title and would like to see the game on Xbox. Microsoft is supporting Tim Schafer and DoubleFine in their search for a new publisher.

Clearly, Double Fine and Activision are on worse terms that that. Your points make a lot of sense though - it doesn't seem like Activision could have put much or any money into Brutal Legend. It certainly couldn't have been to the tune of $15 million...could it? If Double Fine was missing deadlines, it would have been deadlines set by Vivendi, I'm pretty sure. It sounds like everything kind of halted for Brutal Legend once the acquisition happened, and the game was dropped not long after the merger took place. How many milestones could the team have really missed in that timeframe?

But here's the really interesting part. Check out this fascinating quote from September 2008, when Double Fine started looking for a new publisher (remember, this is before EA was ever involved):

Rumor has it that the much anticipated, Jack Black-backed, ride-out-of hell, rock-and-roll action extravaganza... Wait where was I? Oh right, sources tell me that the rights to the Brutal Legend IP may have reverted back to Tim Schafer and his Double Fine Productions.

More interesting is how it may have happened. If you can believe it, our sources tell us that the rights slipped through the publisher's fingers thanks to a mix up or loophole in the contract.

Tim is probably someone who considers retaining his IP to be an extremely important part of any publishing agreement he strikes - Psychonauts was always Double Fine's property, and obviously the EA Partners relationship has Double Fine retaining its IP for this game as well. Maybe Tim found an extremely sneaky (but still legal) way for Double Fine to retain the rights to Brutal Legend within the fine print? Maybe Activision signed a Willy Wonka contract and are pissed off about it?

Or maybe not. The point is, either Double Fine or Activision is 100% wrong about who actually owns the rights. One company's lawyers were outsmarted. I really hope this turns out to be stupidity/greed on Activision's part rather than indiscretion on Double Fine's. With any luck, this will do nothing more than give tons of publicity to a game that EA has already succeeded in making a big deal. If Double Fine was in the wrong, well, a mere settlement is something I'd pray for, though in any event that scenario wouldn't exactly bode well for the developer's future. One thing's for sure, a fight between EA and Activision's lawyers will be an interesting battle indeed.

Edited June 6, 2009 by Udvarnoky

[thorn]

2) If there was really a problem, is it fair for Activision to have waited nearly a year before actually saying anything?

I can't give sources but I can remember hearing about this months ago. Maybe even right back to the point that the EA deal was first announced. It's just suddenly become news because the wider gaming public is now aware of BL.

[Thyroid]

They were only threatening with a lawsuit before, and, to my knowledge, Brütal Legend has always been Double Fine's property.

[gdf]

Tim Schafer is probably loving this, he's ironically getting a bit of free advertising from Activison.

[brkl]

Lawsuits cost money. This probably will, even if they win.

[vimes]

Tim Schafer stated a while ago that, contrary to Psychonauts, Brutal Legend wasn't being made with his own money, so Sierra investing 15 millions dollars to kick BL's into full development is more than believable.

I love Schafer's work and I would support the guy anytime, but it makes sense that if Sierra invested that much to get a certain release date and DoubleFine failed to deliver on the contract terms, they'd pull the plug on the development and ask for compensation.

Most of the publishing deals I know of don't make the developer retains the right to the game content, name or code source; and it sucks, but Schafer's agent Seamus Blackley made a point of allowing Schafer's to retain the right to its universe; he even stated in Spector's interview that's pretty much all Schafer cares about ... so I don't think DF keeping the BL universe is a flaw of the contract at all.

[OssK]

I guess they'll make EA take a stand for their money

[Marek]

Tim Schafer stated a while ago that, contrary to Psychonauts, Brutal Legend wasn't being made with his own money, so Sierra investing 15 millions dollars to kick BL's into full development is more than believable.

I'm pretty sure Psychonauts wasn't self-funded. It was paid for by Microsoft and then, presumably, Majesco. You're thinking of the gap between the two publishers during which, according to Tim Schafer, personal money was used to keep the company afloat.

I love Schafer's work and I would support the guy anytime, but it makes sense that if Sierra invested that much to get a certain release date and DoubleFine failed to deliver on the contract terms, they'd pull the plug on the development and ask for compensation.

No, that doesn't make sense. If a developer misses a milestone, you can make it a big problem for the developer, but you're not going to walk out on millions of investment just because a milestone was missed. It seems the milestone issue is raised only to claim that Double Fine didn't meet its contractual obligations and was therefore in breach.

Anyway, I guess either Double Fine did something really stupid and risky, or Activision is being a mega asshole.

[Nachimir]

A publisher's job is to make as much money for themselves as possible. This generally involves fucking over developers in all kinds of ways, so I'm not surprised at this. Publishers do messy, horrible deals that leave developers at a disadvantage, such as trying to retain as many rights as possible and sometimes being vague on them (They also rarely say no to projects being pitched at them, which developers should never misread as a "yes". They just like to hedge their bets and keep communication open, so will string a developer with a prototype and some IP along in case it suddenly becomes popular). It's not in their interests to care about skilled developers when they're only looking for yearly growth and can use marketing to shovel lots of shit into people's faces.

Investment is more like a twitch game than, say, the way any of us might regard a small business we'd founded with long-term sentimental attachment and plans for growth, so it's not that unusual for a publisher to look at cashflow and suddenly nix projects or even whole studios. Sometimes they're gambling as much as they're planning, which requires cutting losses rather than seeing games to completion. They don't give a fuck that canceling game X will put a studio out of business and leave a load of developers looking for jobs; it's not their job to give a fuck about that because it doesn't result in any quick gains for their shareholders/owners.

I understand why Activision are doing it as a business, but it makes me want to not buy any of their games. It's like they're trying as hard as possible to present themselves as a bunch of evil twunts, because it immediately comes off as bellicose, shallow and possessive in the wake of announcements that Brütal Legend has so much voice talent. It's interesting that there might have been rumblings of this a while ago, but I don't see them fighting over rights to 50 Cent, Ghostbusters or Chronicles of Riddick.

Tim will have been in a very awkward position, and I think however this turns out he's obviously done the right thing in pushing ahead, as it keeps his studio afloat, the project running and his team eating.

[vimes]

I'm pretty sure Psychonauts wasn't self-funded. It was paid for by Microsoft and then, presumably, Majesco. You're thinking of the gap between the two publishers during which, according to Tim Schafer, personal money was used to keep the company afloat.

I could be mistaken but I seem to remember that it took a while for Psychonauts to be picked up by Ed Fries and at that point the development was pretty much in full throttle mode. So, I was more thinking about the intial cost of founding DF and the beginning of Psychonaut's production than the no-publisher gap.

No, that doesn't make sense. If a developer misses a milestone, you can make it a big problem for the developer, but you're not going to walk out on millions of investment just because a milestone was missed. Obviously the milestone issue is raised only to claim that Double Fine didn't meet its contractual obligations and was therefore in breach

I do think it makes sense when missing a deadline results, from what Activision claims, in 8 millions more in addition to the first 15 invested I think it's rather rational for them to decide that the investment will outweight the possible benefits.

Not that dropping Brutal Legend is a smart decision, but I think the business model or dev/publisher interaction must be pretty fucked up if a developer ends up asking for a 50% more investment half way through development.

[ThunderPeel2001]

Rumor has it that the much anticipated, Jack Black-backed, ride-out-of hell, rock-and-roll action extravaganza... Wait where was I? Oh right, sources tell me that the rights to the Brutal Legend IP may have reverted back to Tim Schafer and his Double Fine Productions.

More interesting is how it may have happened. If you can believe it, our sources tell us that the rights slipped through the publisher's fingers thanks to a mix up or loophole in the contract.

Nicely found. Hard to believe it's true, though.