Last month, security company Pinkerton Consulting & Investigations sent a cease and desist letter over to Take-Two Interactive over the characters Andrew Milton and Edgar Ross, Pinkerton agents, and antagonists in Red Dead Redemption II. For those not in the know, Pinkerton is now the world’s leading provider of corporate risk management solutions as well as a subsidiary of a security company, but was most known for being a security and detective agency back in the day. The company claimed it was trading the “goodwill” associated with the company’s trademarks and giving a false view that the game was made by or involved with Pinkerton. They also demanded either a lump sum or ongoing royalties. Last week, Take-Two Interactive fired back and is now suing Pinkerton Consulting & Investigations to have the characters declared fair use.

Take-Two states that the security company ignores “well established First Amendment principles that protect expressive works, like Red Dead 2“. In the official document, Take-Two Interactive makes note that several other Western Fiction has references to the Pinkerton National Detective Agency including films such as The Long Riders and television shows such as Deadwood. They also note that the Pinkerton National Detective Agency is a part of the history of America. “It is an established historical fact that the Pinkerton National Detective Agency played a key role in the history of American law enforcement and the taming of the Wild West. In the late 1800s, the U.S. Department of Justice employed Pinkerton agents to enforce federal law, pursue local investigations, and hunt down fugitives.”

What makes this important is that Red Dead Redemption II is set in a historical, detailed setting. It’s also a work of fiction like the films and television shows that have included the Pinkertons in their fiction. In other words, the name and use of the Pinkertons have long been established before and if it was allowed then, why can’t it be now? The Pinkertons are a part of America’s history, and evidently there are laws that allow creative works set in the American West to include real-life figures and events.

“Particularly where there is no likelihood that consumers will be confused about the source of the creative work, trademark owners should not be permitted to use trademark law to harass authors, chill speech, and diminish the historical tenor of works like  Red  Dead 2.”  The post goes on to say that the authenticity of the experience, whether it be a game or any other form of entertainment, would suffer if Pinkerton Consulting & Investigations were to win this issue. 

This isn’t the first time that Red Dead Redemption II has gotten involved in one issue or another. Before its release in October, there were problems many had with the amount of work that Rockstar employees were put through. There was also an issue with some stores getting delayed copies of the game. Despite these issues, the game went on to have the biggest launch weekend in the history of entertainment. Red Dead Redemption II continues to roll out new updates after announcing several changes to Red Dead Online, including a new battle royale mode called Gun Rush.