First Amendment

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

Popular video game should prevail in lawsuit over its depiction of the infamous detective agency.


Screenshot via RDR2 / Youtube

In 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 19th and 20th 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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  1. intent to trade on the goodwill associated with the Pinkerton Marks

    “No, you’re just pissed that we’re showing you for the bloody-handed thugs you once were.”

    1. “What, you don’t want us to trade on your goodwill toward corporate and government cronies? Are you not proud of your work?”

  2. After all, there is plenty of publicly available information on the Pinkertons’ activities in the 18th and 19th century

    In the 19th, yes. In the 18th, I think not, since the agency was founded in 1850.

    1. Huh. I thought I was the only one who sometimes gets off by a century because, dammit, 18th century ought to mean 18xx!

      1. Another person confused by how numbers work.

      2. So the year 1AD was in the zeroth century, then? Great thinking!

        1. There was no year 0 either.

    2. Argh. Thanks.

  3. Serious question: Do the “liberals” who denounced the Citizens United case because “corporations have no 1A rights” think that this should be a slam dunk for the Pinkertons?

  4. “thwarting the first attempt on Lincoln’s life”

    Nice half-assed job you did there, guys.

    1. There were several attempts on Lincoln’s life. Just getting through Maryland to take office in 1861 required a subterfuge to mislead a gang waiting to intercept him. But by April 1865 the war was won, and his guards relaxed a little.

  5. Abraham Lincoln, Vampire Hunter…(should the White House sue?) The Passion of Christ…(should Church of Christ sue?) Mississippi Burning (should the State of Mississippi sue?)

    If this goes Pinkerton’s way, that’s the end of historical drama. We’ll just pretend history never happened. That always works out well.

    1. No, because it’s only the names & identifying marks of a biz that are at issue.

    2. Anyone named Jones ought to sue McHonna-hey for that Free State movie for sure.

  6. In other news, Wells Fargo is suing the producers of the Music Man.

  7. The real tragedy is that RD2 won’t ever be available for PC.

    1. Q: Why did the console gamer cross the road?
      A: To render the trees on the other side.

      1. Q: Why did the PC gamer stop complaining about progress?

        A: Because he hit the inevitable blue screen of death.

    2. As far as I’m concerned, RD2 isn’t even a game, because on it’s not on a viable gaming platform. I already have a bluray player, thanks, I don’t need another glorified one.

  8. This gets at trademark law & its purposes. Merely having Pinkertons identified as such in fiction isn’t problematic, but featuring them as such seems to carry the implic’n of endorsement. Dashiel Hammett (a former Pink) fictionalized them as the Continentals, so why shouldn’t this video game do similarly, or at least include a disclaimer?

    1. Think about it: Had Dashiel Hammett identified one of his most famous characters, the Continental Operative, instead as a Pinkerton detective, would that not have been trading on their well-known name for commercial advantage? Why wouldn’t the Pinks then have been justified in claiming a piece of that action?

      1. You realize that one guy’s decision to avoid a legal wrangle (and, frankly, probable murder for being a “turncoat”) doesn’t create legal precedent, right?

        And on what fucking planet is describing someone as a villain an “endorsement”?

    2. Also I suspect the name Red Dead to have been chosen to reflect that of Red Harvest w/o the Hammett estate’s being able to claim infringement!

    3. The leader of the gang is called “Dutch”, but I don’t see Ronald Reagan’s zombie suing nobody.

  9. Wikipedia- Pinkerton (detective agency)

    Pinkerton, founded as the Pinkerton National Detective Agency, is a private security guard and detective agency established in the United States by Scotsman Allan Pinkerton in 1850 and currently a subsidiary of Securitas AB. Pinkerton became famous when he claimed to have foiled a plot to assassinate president-elect Abraham Lincoln, who later hired Pinkerton agents for his personal security during the Civil War.

    I guess Lincoln should not have left for Ford’s Theater without his main bodyguard, Ward Hill Lamon, on April 14, 1865.

  10. So a privatized security and police force.

  11. The Pinkerton Agency Wants to Be Treated with Respect. Why Is This Offensive?

    1. They as a company have not acted respectfully towards others?

      1. Three examples from their history:

        * When searching for Jesse James the Pinkertons surrounded his mother’s house in Missouri. Believing Jesse to be in the house one of the Pinks threw a flare into the house, purportedly to smoke him out. Instead the flare exploded, killing his mother’s youngest son and maiming his mother;

        * The Pinkertons were the leading force in infiltrating and smashing the Molly Maguires; and

        * The Pinkertons were heavily involved in Ford’s brutal fight against union organizers in Detroit, including the Battle at River Rouge.

        So if you want to respect them for being skilled detectives, all well and good. If you also want to respect them for being ruthless thugs always at the beck and call of the almighty dollar, not so much.

    2. Nobody is entitled to respect, contrary to the self-serving claims of countless generations who demand respect without having earned it. Respect is earned, and that has to be accomplished with every single individual whose respect you desire.

      Sound like a lot of work? Maybe respect, or at least the respect of people you’ve never met, isn’t really that important. Virtually nobody has it anyway.

  12. If a “whole nest of stinkin’ Haitians” didn’t sue from San Andreas, how can Pinkertons?

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