Bobby Prince, a composer/sound designer responsible for many iconic early-90s midi jams, has filed a lawsuit against Gearbox Software, Gearbox Publishing, Valve Corporation, and Mr. Randy “Where’d I Leave My Thumb Drive” Pitchford himself, claiming that Gearbox et al. have been selling Duke Nukem 3D: 20th Anniversary World Tour without first obtaining a license for the game’s music, which Prince composed and has sole ownership of.
Furthermore, the suit claims that Pitchford moved forward with World Tour‘s release with full knowledge that Prince’s music hadn’t been licensed, and that Valve willfully ignored Prince’s attempt to have his copyrighted material removed from its service.
“Defendant, Randy Pitchford, the Chief Executive Officer of Gearbox, admitted that Mr. Prince created and owns the music and that Gearbox had no license,” according to the suit, which was filed in the Eastern district of Tennessee last Friday, Sept. 27. “Mr. Pitchford proceeded to use the music without compensation and refused to remove the music from the game.”
Continuing, “Valve ignored a takedown notice, thus waiving any immunity under the Digital Millennium Copyright Act (“DMCA”), and continued distributing infringing copies of the music despite knowing that Mr. Prince owned the copyrights in the music.”
According to the lawsuit (and backed up by Prince’s registered copyright filing from 1996), the original developers of Duke Nukem 3D, Apogee Software (doing business as 3D Realms), never owned the rights to Duke Nukem 3D‘s soundtrack. Instead, Prince licensed the soundtrack to Apogee in exchange for a royalty payment of $1 per unit sold. Even though Gearbox acquired ownership of the full Duke Nukem catalogue in 2015, it didn’t acquire the rights to Duke Nukem 3D‘s music at the same time, since Apogee never owned them in the first place, the lawsuit alledges.
“Incredibly, the electronic files for the music within Duke Nukem 3D World Tour include text specifically stating that Mr. Prince owns the copyright to the music and has reserved all rights to the music’s use,” the filing states. “Yet Gearbox incorporated the music into the game without ever contacting Mr. Prince and without clearing the rights expressly mentioned in the electronic files.”
In October of 2016, Prince contacted Gearbox CEO Randy Pitchford about World Tour‘s pending release, providing him with a copy of the original Apogee licensing agreement, as well as his home address, so that new royalty payments could be furnished by Gearbox. Pitchford then “began stringing Mr. Prince along with promises that he would ‘do right’ by Mr. Prince and that Mr. Prince would be ‘taken care of,'” according to the lawsuit.
The game went ahead and released on October 11, 2016, allegedly with no agreement in place for licensing Prince’s soundtrack. Gearbox Head of Publishing Steve Gibson was reportedly brought into the discussions at some later date, at which point he was instructed to “do right” by Prince, the suit says. “During discussions with Mr. Prince, Mr. Pitchford and Mr. Gibson acknowledged that Mr. Prince owned the music he had composed for Duke Nukem 3D and that Gearbox used in Duke Nukem 3D World Tour.”
It’s been almost three years since all that went down, and since Gearbox has neither paid Prince, nor removed his music from World Tour, we’ve reached the ever-so delicious “suing Randy Pitchford” phase of the situation. Valve, for its part, is included in the lawsuit because it has continued to sell World Tour throughout this process, even after a “Notice of Exclusive Right Infringement” from Prince was delivered to Valve via certified mail on February 8, 2018. The lawsuit claims that Valve never responded to the notice and instead chose to continue selling the game.
Prince is seeking “an award of maximum statutory damages per infringement or, alternatively, actual damages and Defendants’ profits, plus attorneys’ fees and costs, as well as an injunction prohibiting Defendants from infringing his copyrights.” As of press time, Duke Nukem 3D: 20th Anniversary World Tour is still for sale on Steam.