View Full Version : 3D Realms Sued Over Earth No More

02-19-08, 03:55 PM
Two men who claim to have come up with the idea for the action title Earth No More are suing 3D Realms for allegedly stealing their idea. Next-Gen speaks with the plaintiffs' lawyer.
Court documents confirm a report in last Friday’s Dallas Business Journal that states California residents Darin Scott and Edward Polgardy of Cinemagraphix Entertainment filed a copyright suit against Tex.-based Duke Nukem developer 3D Realms in late January.

The plaintiffs claim to have shopped around the idea for a game called Earth No More back in early 2005 to several game companies, including 3D Realms. In June 2007, 3D Realms announced plans to release a game dubbed Earth No More sometime in 2009.

The suit lists defendants as Apogee Software (3D Realms’ other moniker), Earth No More development partner Recoil Games of Helsinki, Finland and Action Entertainment.

Scott and Polgardy’s complaint accuses the defendants of copyright infringement, unlawful competition, misappropriation, unfair business practices, unjust enrichment, conspiracy and other claims.

The plaintiffs are seeking damages under the US Copyright Act, which can include actual damages such as a disgorgement of profits from the game, statutory damages of up to $150,000 plus attorneys’ fees and an injunction against the 3D Realms’ distribution of the property.

The complaint calls 3D Realms’ Earth No More “virtually identical in substance” to the plaintiffs’ property.

Separate court documents filed in October 2007 reveal that 3D Realms, under the name Apogee Software, filed a preemptive request for declaratory judgment against Scott and Polgardy, which asked a judge to rule that 3D Realms’ Earth No More did not infringe on any property.

In that earlier suit, 3D Realms claimed that Earth No More, which is slated for PC, Xbox 360 and PS3, developed the game “without access to or use of any material created by” Scott and Polgardy.

One of the plaintiff’s attorneys, Tre Lovell, told Next-Gen in a phone interview Monday that the average person would “absolutely” be able to tell similarities between the game that Scott and Polgardy pitched and 3D Realms’ announced title.

“First of all, the title ‘Earth No More’ is a title that I haven’t been able to find in the title of any intellectual property out there. There’s no movie, TV show, book, play, anything like that which has the title ‘Earth No More.’"

Lovell said that the plaintiff’s game concept involved spores that terraform to Earth and start to spread.

“It’s more or less like the Apogee game is,” he claimed.

A July 2007 preview for 3D Realms’ and Recoil’s Earth No More stated, “[A small New England] town is under quarantine due to the massive red vines that have sprung from the Earth. These vines are poisonous and they are spreading like wildfire as they strangle and terraform the environment around you. To make a bad situation worse, animals and plants are mutating into nasty abominations of their former selves.

“The developers have stated that a mysterious spore is the cause of the horrendous events that have started to decimate the Earth.”

Lovell said that concept art for the games is also similar.

“The premise is not a very popular one in the videogame community right now,” he added.

Lovell said he previously contacted 3D Realms’ attorney J. Pat Heptig to settle the suit, but efforts “proved futile.”

“This happens all the time in the entertainment industry,” Lovell said. “…I’ve been doing this for a number years. This is brazen, bold and surprises me.”

An e-mail to 3D Realms had not been returned as of press time. Attempts to reach Heptig were unsuccessful.