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Thursday, January 17, 2019

Red Dead Redemption 2 Has First Amendment Right to Use Pinkertons As Villains

By Robby Soave - January 17, 2019 at 08:15AM

RDR2In American history, the Pinkertons are a not-so-fondly remembered private security agency that did the government's dirty work throughout the late 1800s and early 1900s: breaking up labor unions and arresting gang members (often via brutal means). At present, the Pinkerton Detective Agency still exists, and it would like the creators of the Old West-inspired video game Red Dead Redemption—in which the hired thugs appear, true to form, as notable villains—to pay up.

Take-Two Interactive, Red Dead Redemption 2's publisher, received a cease and desist letter from Pinkerton last month. "Although we are flattered by your clear affection for Pinkerton and the Pinkerton Marks, their prominent use in the game appears to be made with the intent to trade on the goodwill associated with the Pinkerton Marks," wrote the company. The letter demanded a lump sum payment, or royalties.

Take-Two has refused to pay the ransom. This week, the company responded by filing a lawsuit against Pinkerton. The suit asks a judge to confirm Red Dead's First Amendment right to reference actual history, according to The Verge.

"Defendants ignore well-established First Amendment principles that protect expressive works, like Red Dead 2, from exactly the types of claims that Defendants have lodged against Plaintiffs," Take-Two argues in its lawsuit.

The suit prompted Pinkerton to change its tune. In a statement, the agency claimed the game had misrepresented Pinkertons as bad guys:

One cannot rewrite history to create profit in the present at the expense of real-life people who represent a brand today. In the game, Pinkertons are seen shooting horses, shooting guns and firebombs into buildings where women and children are present, and as violent villains in the community. History tells a different story. Allan Pinkerton was a visionary businessman who created the country's first detective agency in 1850. The logo he created features an eye, leading to the term "Private Eye," which is a part of American lexicon today. After working as President Lincoln's security detail and thwarting the first attempt on Lincoln's life, the agency became the inspiration behind the creation of the Secret Service.

Pinkerton President Jack Zahran lamented that his employees must now explain to their video game-playing children "why Red Dead Redemption 2 encourages people to murder Pinkertons."

If the agency were to succeed in this scheme of exacting payment from Take-Two, it would be an awful affront to free speech protections. Thankfully, this is one legal gunfight the Pinkertons should almost certainly lose.

"Pinkerton has nothing resembling a case," Ken White, an attorney and contributing editor to Reason, told me via email. "Their claim is so preposterous that Take-Two's very aggressive strategy—sue them for a declaration—is warranted and will likely be successful."

Timothy Geigner of Techdirt reached the same conclusion, writing, "it's quite difficult to imagine works of art having to license history in the way Pinkerton has suggested Take 2 should."

After all, there is plenty of publicly available information on the Pinkertons' activities in the 18th and 19th century, and they have made appearances in other media, including television shows like Deadwood and Sherlock Holmes stories.

"The notion that Pinkerton can somehow prevent entertainment use of its historical behavior is offensive and ridiculous," said White. "Also, the Pinkertons were armed thugs for decades."

If the matter goes to court, a judge should reach the same conclusion.


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