Bungie Might Lose A Copyright Lawsuit Because They Retired Destiny 2 Content

Bungie seems set to lose a big lawsuit, partly by their own hands.

In October 2024, a writer named Kelsey Martineau sued Bungie for Destiny 2’s Red War campaign in California court. Martineau’s claims are that Red War is too similar to an original story he published online. From 2013 to 2014, Martineau wrote about a conflict with a faction called the Red Legion, using the pen name Caspar Cole, and published it on WordPress. Martineau accused Bungie of taking his story and using it for Destiny 2 Red War.

Obviously, to defend their case, Bungie would have to show Destiny 2 Red War to the courts and then demonstrate what parts of the game were supposed to have been plagiarized. They would then have to explain that they created them originally and the similarities are a coincidence.  But then, Bungie told the courts that after they removed Destiny 2 Red War from the game, they changed Destiny 2 to such a considerable degree that they could no longer show the original assets and video from Destiny 2 Red War. They then used Destiny 2 Red War fan videos as evidence on the court.

As it turned out, this one executive decision Bungie management made years ago was a costly mistake. Bungie’s motion to dismiss Martineau’s lawsuit has been denied, precisely because the presiding Judge Susie Morgan decided that the fan videos were weak evidence.

To quote Judge Morgan’s decision:

Bungie archived the original code that comprised the ‘Red War’ and ‘Curse of Osiris’ campaigns (known as ‘legacy builds’),” game director Tyson Green’s declaration reads. “However, the ‘Red War’ and ‘Curse of Osiris’ legacy builds can no longer run because their outdated code is incompatible with Destiny 2’s underlying operational framework, which has evolved considerably since the ‘Red War’ and ‘Curse of Osiris’ campaigns were retired.

As a result, Bungie cannot feasibly provide the Court with the original Destiny 2 game as it existed in 2017, including the accused ‘Red War’ and ‘Curse of Osiris’ campaigns, in any operable or reviewable form. Nor will Bungie be able to produce the accused campaigns in operable or reviewable form if this matter proceeds to formal discovery.

The Court will not consider the exhibits attached to Defendant’s motion to dismiss and will not convert the Defendant’s motion to dismiss to a motion for summary judgment. There has not been sufficient time for discovery, and the attachments are admittedly of third-party origination. Their authenticity has not been established.

Judge Morgan goes on to explain that the case will be complicated, as they will have to carefully study the fan videos and compare it with Martineau’s work to carefully establish if plagiarism or IP infringement occurred. This is not the end of the case, but Bungie only have themselves to blame for this case moving forward. Because they didn’t have the foresight to preserve their old content, they will now be spending money and effort to defend themselves in court, when it was possible they could have had it dismissed more easily otherwise.

Some fans believe that Bungie will be ‘forced’ to bring back Destiny 2’s Red War because of this case, but that would create new complications. These would include new costs of development and the judge once again having to meticulously study if it will stand as evidence in court. If it was possible, they would recreate a version of Destiny 2’s Red War only to bring it to the courts, and it would not necessarily be available to the public to play as part of Destiny 2 proper.

Bungie definitely didn’t need to deal with this issue at this point in the studio’s lifetime, but it looks like this will be part of their immediate future, alongside the current state of Destiny 2, and their upcoming release, Marathon.