Is Dion DiMucci's Fallout lawsuit one big misunderstanding?

I was absolutely baffled when I first heard that that Dion DiMucci was suing Zenimax, the parent company of Bethesda, for using his song “The Wanderer” in trailers like this for Fallout 4. And the more I examined the case, the more confusing it became. 

DiMucci claims Fallout 4 ads using his song portray “repeated homicides” in a “dark, dystopian landscape, where violence is glorified as sport” and that “The killings and physical violence were not to protect innocent life, but instead were repugnant and morally indefensible images designed to appeal to young consumers.”

Now, hold up a second. Watch one of the trailers in question. 

This ad has:

1. A nuclear explosion that wipes out a 1950s neighborhood.

2. The main character shooting a giant roach with a rifle.

3. The main character and a group of super mutants hilariously missing each other from near point blank range.

As far as I can tell, no direct homicide is depicted, except for a dog-sized cockroach. If that’s what counts as “repugnant” violence, then the average `80s Raid ad has a much higher body count. And I’d shoot a dog-sized cockroach with a freaking Mini-Nuke if I saw one in real life, because, come on, it’s a DOG-SIZED ROACH.

The legal brief also mentions that the main character “roams from one location to the next, armed and hunting for victims to slaughter.” While there is wandering, I’d say that the video is pretty short on hunting and slaughtering. The mom in that Raid ad kills at least five or six roaches with a single spritz. If Mr. Bad With A Rifle in the Fallout 4 ad counts as a bloodthirsty killer, then Raid Mom is an absolute monster. 

Mistaken Identity 

While this ad was obviously not designed to play between afterschool specials, it’s nothing I haven’t seen in the average PG-13 Marvel movie. And DiMucci seems to have no problem with the usage of “The Wanderer” in Behind Enemy Lines, a film with a much higher body count, direct military insubordination, mass graves, and Owen Wilson.

The entire case seemed utterly absurd to me. Then I did a few Google searches. I found that the most prominent result that comes up when looking for combinations of "Fallout" and "Wanderer" was this much more popular fan-made video by Mike Valenzuela that also uses “The Wanderer.”

This video has 2.8 million views, and uses footage from original Zenimax / Bethesda-created commercials. It has a body count so high that I’m not even going to bother enumerating it, including the VATS-enabled slo-mo exploding heads we all know and love. At 1:07, there’s even a brutal cage match kill that would fit DiMucci’s claim of “violence glorified as sport.” It would be R-rated for sure.

Valenzuela’s video has no narrative, and fits the lawsuit's description of being a mindless kill fest. Meanwhile, the official and much less violent ad was harder to find.

The existence of this popular fan video suddenly provides a much more plausible explanation for the entire lawsuit. Could it be that someone, either DiMucci or a person acting on his behalf, went to Google up "Wanderer" and "Fallout" and found Valenzuela’s video, thinking it was an official release from Zenimax? Given the details in the lawsuit, it sure seems likely. 

The online world of video game fan creations can be confusing, and at 77 years old DiMucci might not know that anyone with an MP3 of "The Wanderer" and a copy of Adobe Premiere Pro can make a professional-looking video using gameplay footage. This could all have been an honest mistake, though you would hope that someone involved in the lawsuit, at some point, would have figured all this out before we got this far. 

So don’t panic, gamers. This isn’t Jack Thompson 2.0. It might just be YouTube befuddling your grandpa.