Borderlands maker Gearbox Software is suing Apogee Software, which owns 3D Realms, over the Duke Nukem IP.

To recap, Gearbox bought the Duke Nukem IP from 3D Realms in 2009. At the time of the deal, according to Gearbox, 3D Realms failed to communicate that the sale of the Duke Nukem rights did not include the rights to some of the music written by composer Bobby Prince. Unaware of that, Gearbox included that music in Duke Nukem 3D: 20th Anniversary World Tour (2016). In September 2019, Bobby Prince filed a lawsuit against Gearbox, Valve, and Gearbox CEO Randy Pitchford over unpaid royalties.

Pitchford said via Digital Trends that he believes Prince’s claims are valid. According to the company, it is 3D Realms that did not hold up their end of the deal.

“…Gearbox purchased all intellectual property related to the Duke Nukem video game series (the ‘Duke IP’) from 3D Realms,” the lawsuit states. “In the [Asset Purchase Agreement], 3D Realms represented to Gearbox that the Duke IP was owned free and clear by 3D Realms and that 3D Realms had the right to use the Duke IP ‘without payment to a Third-Party.’ 3D Realms further warranted in the APA that no copyright was infringed by use of the Duke IP in the Duke Nukem video game series.”

Not only did 3D Realms fail to deliver the Duke Nukem IP “free and clear,” it also refused to indemnify Gearbox against Prince’s claims, which was part of the deal. Moreover, there can be other potential unknown problems around the IP that 3D Realms didn’t mention at the time of the sale.

“If 3D Realms is wrong here, they’re kind of shitheads,” says Pitchford sounding not unlike Duke Nukem. “Part of what the court is supposed to do is disincentivize shitheads.”

In the past, Gearbox already sued 3D Realms over the Duke Nukem IP. In 2014, 3D Realms started developing RPG Duke Nukem: Mass Destruction. The court ruled that the rights belonged to Gearbox meaning that 3D Realms couldn’t proceed with the project.