Below the radar?

So a funny thing happened while I was playing Wasteland 2. Like many CRPGs, there is various looting of defeated enemies, containers, etc. This is the same today as it was decades ago, and no doubt stems right out of the original pen & paper Dungeons & Dragons, which devoted no few pages to treasure tables for random generation of the shinies your party could look forwards to once the monsters were properly feathered, filleted, and fireballed. MMORPG’s often make a certain rare item the reward for an entire questline, and people willingly team up with up to 39 more-or-less strangers just for the opportunity for one person to maybe get the “drop”. We like our loot.

The fact that Wasteland 2 has loot is not surprising. What was surprising to me was the form some of it took, which was various bits of intellectual property that was not even a little bit disguised. We’re not even talking the paper-thin don’t-sue-us veneer of Fallout’s “Nuka-Cola” or our own “ClearStream”. Wasteland 2 presents a world whose clock stopped around 1988. Technically 1998, but I’ll talk about that discrepancy another time. It’s definitely a 1980s take on what existed before the bombs fell, and the various loot containers of the landscape are rife with Rubik’s Cubes, Cabbage Patch Kids, and Teddy Ruxpins.

I wouldn’t bat an eye if I were picking up Bubik’s Tesseracts, Lettuce Head Tots, and Reddy Tuxpins. But here they were, not only with their trademarked names but pictures and flavor texts identifying beyond a doubt the designer intent. It’s a Teddy Ruxpin. Likeness used (as far as I know) without permission. Yup.

I mean, it’s possible that InXile Studios went out and licensed the inclusion of all these, but that seems unlikely, especially since all of them are what’s considered “junk items”, with no real use beyond selling them off to the next trader you run into. Further complicating the issue are the occasions where the names do get changed, such as a bottle of “Hair and Shoulders” dandruff shampoo or a diesel locomotive with “UNINON PACIFIC” labeled prominently on its side. A cult based off one of Tony Robbins’ motivational books changes the book title slightly and takes care not to mention him fully by name. But then you pick up a Baby Ruth candy bar.

Now the probable answer here is that different people designed different parts of the game, and one or more of them were far less concerned with possible lawsuits. After all, a big part of trademark law depends on the idea of brand confusion or unfairly profiting off the inclusion of a trademarked item, and it’s hard to argue Wasteland 2 is selling any more copies than it would normally because it has a Sega Genesis as a loot item. Certainly none of the stuff detailed above is being used in the advertisement of the game, but on the other hand it’s not really being used for parody or satire, either, it’s just there.

Maybe InXile’s legal department knows more than I do. Or perhaps it’s just a straight up case of “flying below the radar” and being too small a fish to bother with, since really, most copyright and trademark cases are an issue of whether or not the person or company being allegedly infringed a) knows about it, and b) wants to bother. Wasteland 2 has made millions of dollars in sales, but it still hardly has the prominence of a Triple A title from a major publisher.

The continued existence of Artist’s Alleys at comic conventions is proof that operating below the radar works, but on the other hand I recall that time Dawn got this illustration (which had sold exactly zero times) pulled from one of her online stores because Fender complained the neck of the guitar resembled their trademark too much. Then again places like CafePress are notorious for crumbling and caving at the very whiff of a DMCA notice, regardless of its validity, so perhaps that example doesn’t prove anything except that CafePress has no spine.

The developers of Wasteland 2, by contrast, have some big brass balls, as I talked about last week. So maybe this rampant flaunting of IP is just yet another facet of them exercising the freedom of being crowd funded and answering to no one but their fans, and perhaps a commentary on how today’s corporate culture has gotten way too wrapped up in holding onto their copyrights and trademarks with twitchy death grips. Maybe that’s why they’re also mostly classified as “junk”.

Or maybe I’m reading way too much into a bunch of in-jokes and references whose only difference from most is just coming right out and calling a Nintendo Power Glove a Nintendo Power Glove. But even if it’s flying under the radar, it’s been on my radar, and it’s another interesting development.