How can a video game take over a decade to develop? As of this date, Duke Nuke Forever (“DNF”) is known as the game that has taken the longest to be developed. After fourteen years of screen shot leaks, changing development teams, and a tug-of-war lawsuit between Take-Two and Apogee that ended in dismissal, on May 3, 2011 in North America and May 6, 2011 worldwide gamers will finally be able to play DNF on their PCs.
The parties involved are well known in the industry. Take-Two Interactive is the publisher of the hit game series “Grand Theft Auto.” Take-Two paid $12 million in exchange for ownership of most of DNF intellectual property rights.
3D Realms is the developer of DNF, but its name operates similar to a pen name. “Apogee Software Ltd.” is a fully owned subsidiary of “Action Entertainment Inc.” Apogee Software Ltd has two names that it conducts business under instead of its corporate name, one of which is “3D Realms.”
1. No Set Deadline
3D Realms began working on DNF in 1997. According to 3D Realms, there was no agreed upon deadline for when the game had to be completed. (See Apogee Answer, pg 3 part 9) In addition, the development team had undergone a number of changes, including hiring new staff and switching equipment used to develop the game.
On October 22, 2007, Take-Two and 3D Realms entered into a contract to finalize publishing details about DNF. The agreement stated Take-Two could not publish a sequel to DNF, nor could they create a game based off of a Duke Nukem movie. The agreement also mentioned another game in the Nukem series being developed, what has been coined “Duke Begins.” (Id. at 15, part 9.) Duke Begins is being developed by 2K Games, and while in the Nukem series, is completely separate from DNF. (Id.)
2. Repayment Confusion
As per the 2007 agreement, a mid-2010 deadline was set for the completion of Duke Begins, and Take-Two provided a $2.5 million advance to help fund DNF. (Id. at pg 4, part 11) Royalties generated by the sales of DNF or Duke Begins would repay Take-Two. (Id. at pg 3 part 11) In other words, the publisher would recoup its advance in one of two ways: if Duke Begins was released before DNF and made enough to repay Take-Two, or from sales of DNF that would have to be released by October 22, 2012. (Id. at pg 4, part 11) In either case, any part of the unpaid advance would become immediately due and payable on October 22, 2012. (Id. at pg 16, part 13.)
3. Source Code v. Object Code
On May 6, 2009, 3D Realms claimed it had run out of money and was shutting down production. In response, on May 12, 2009 Take-Two filed suit against 3D Realms seeking equitable relief for breach of contract and undue delay. Take Two asked the court to prevent the developer from damaging or changing the source code for DNF, from distributing or leaking any information relating to DNF, and to deliver a copy of the source code to Take-Two for safe keeping. 3D Realms countered that under a May 2001 agreement, 3D Realms had the rights to digital distribution and direct mail for DNF. Additionally, the terms of the contract explicitly stated 3D Realms would provide Take-Two with a “gold master disk,” which in the game industry means providing only the object code, not the source code. (Id. at pg 6, part 21.) Take-Two also had the right to create DNF versions for consoles after the release of the PC version. (Id at 22.)
Eventually both parties reached a settlement and the lawsuit was dismissed with prejudice, which means the case cannot be litigated again on the same claim. As of September 2010, developer Gearbox Software known for their hit “Borderlands,” began assisting 3D Realms in completing DNF for its 2011 release.
The Duke Nukem series first began in 1991 on a shareware 2D platform with Duke sporting the last name “Nukum” instead of “Nukem.” (Retro Gamer Issue 17, pg 16.) The name changed to Nukem after the company was assured there were no intellectual property holds on the name, and Nukem has been his last name for the past eighteen years. (Id at 17.)