Luke Owen looks back at the court battle between Universal and Nintendo…
“[King Kong] surpasses anything of its type which has gone before it in commercial film-making. The work has many flaws, but they’re overcome by the general results. The errors will probably be overlooked… While not believing it, audiences will wonder how it’s done. If they wonder they’ll talk, and that talk plus the curiosity the advertising should incite ought to draw business all over. Kong mystifies as well as it horrifies, and may open up a new medium for scaring babies via the screen.” – Variety’s 1933 review of King Kong.
Released in 1933, Merian C. Cooper’s King Kong did indeed draw business all over. It’s opening at Radio City Music Hall saw every one of its ten shows sold out, with people queuing around the block to see the giant ape on screen. Tickets cost between 35 and 75 cents, and King Kong made just under $90,000 before its official premiere twenty days later at Grauman’s Chinese Theater in Hollywood. Released by RKO Pictures, King Kong would spawn a sequel later that year with Son of Kong, and the ape would be licensed out to Japanese studio Toho for King Kong vs. Godzilla in 1962 and King Kong Escapes in 1967, followed by a 1976 remake by Dino De Lautentiis. To this day, King Kong vs. Godzilla is the highest grossing movie in the Godzilla franchise in its home country. However, all of these releases caused some legal concern over who actually owned the rights to the King Kong movie, name and character; something that would rear its head again when video games became popular.
In 1981, Nintendo released Donkey Kong into arcades around North America. Designed by Shigeru Miyamoto, Donkey Kong was originally intended to be a game based around Popeye, but their acquisition of the comic strip fell through and the company used this as an opportunity to create their own characters. Miyamoto replaced Bluto with a giant ape as an ode to Beauty and the Beast as well as King Kong, while replacing Olive Oyl with Lady (later renamed Pauline) and Popeye with Jumpman (later renamed Mario). The game saw players take on the role of Jumpman, as he ascends the various construction sites that Donkey Kong stands atop of, avoiding flying obstacles to finally save Lady. The game was a huge hit, and propelled Nintendo into massive mainstream success. By 1982, Donkey Kong had sold over 60,000 units and earned $180 million.
When Universal Studios decided they wanted to get in on this hot new video game craze, the President of the company Sid Sheinberg was shocked when he discovered Donkey Kong. To him, this was nothing more than a blatant copy of King Kong, a film and character they claimed they owned the rights to. Upon further investigation, they learned about a deal between Nintendo and Coleco to release a version of the game for ColecoVision. Universal had intended to meet with Coleco about possible investment, but instead declared copyright infringement, and said that both Nintendo and Coleco had to stop the marketing and distribution of Donkey Kong in the next 48 hours, and send Universal all the profits made from the game. Colecto struck a deal with Universal instead, offering them 3% of the game’s net worth, which the studio agreed to and said they would not sue Coleco if they kept up with their payments.
Nintendo, on the other hand, did not budge.
Universal next targeted Tiger Electronics, who had licensed King Kong to be released as a handheld video game, something that had not been signed off by the studio. They asked Tiger to send them the game for approval, but sent it back when they felt it was too similar to Nintendo’s Donkey Kong. Upset, they revoked the license from Tiger, who appealed and challenged them to prove they owned King Kong.
Nintendo still weren’t budging, and for similar reasons. Howard Lincoln, Nintendo’s attorney, had considered an out-of-court settlement but decided to push Universal on their ownership claims. On May 6th 1982, Lincoln and Coleco met with Universal Studio’s vice president of legislative matters Robert Hadl, who again asked for Nintendo to stop the manufacturing of Donkey Kong. Lincoln pointed out that the King Kong name and image had been used on several unlicensed products, which meant that Universal did not own the exclusive rights. Hadl agreed to send over the chain of ownership to prove they did, but weeks passed and nothing was sent. When Lincoln pressed to find out when it would be provided, Universal responded with more demands for royalties. When Nintendo refused, Sheinberg told them, “you’d better start saving money to pay for your attorney’s fees, I view litigation as a profit centre.”
Lincoln knew Universal didn’t have enough to win. Nintendo had this in the bag. So confident was Lincoln that he told Nintendo of America president Minoru Arakawa that this would push the company into “the big time.” Universal, on the other hand, thought otherwise and took Nintendo to court, also sending out cease-and-desist letters to companies who had licensed Donkey Kong from Nintendo for their machines, or also face being sued. Almost all of them – including Atari – gave in and paid Universal royalties. The only companies who didn’t were Milton Bradley and Ralston Purina, who released a board game and breakfast cereal respectively based on Donkey Kong. In fact, Ralston Purina tried to settle with Universal, but Sheinberg threw them out of his office.
To represent Nintendo, Lincoln brought in John Kirby who had previously won litigation battles for big companies like PepsiCo. They flew out to Japan to interview the key people at Nintendo, including Shigeru Miyamoto and president Hiroshi Yamauchi. With all of their interviews and an ace up their sleeve, Nintendo went into the court room with a lot of confidence.
During the court battle, which was overseen by Judge Robert Sweet, Universal’s main claim was that gamers would be easily confused between King Kong and Donkey Kong, thinking they were one and the same. They also claimed that the game’s plot about Jumpman trying to save Lady from Donkey Kong was a direct copy of King Kong. Nintendo countered by having Market Research Analyst Jerry Momoda play through both Donkey Kong and Donkey Kong Jr. to show the differences between the two properties, as well as presenting depositions from Miyamoto, who confessed that he did originally name his character King Kong but only because the name was used as a generic term in Japan for any large ape.
But the ace up their sleeve, and what won them the case, was that Nintendo proved Universal did not own the exclusive rights to King Kong. Not only did they not own the rights, they knew they didn’t own them like they claimed.
The intellectual property status of King Kong had always been a grey area. Merian C. Cooper, the 1933 director, had always assumed he owned the rights, and had licensed them out to RKO Pictures for King Kong and Son of Kong, but found difficulties when trying to mount Tarzan vs. King Kong at Pioneer Pictures in 1935. During several legal meetings, Cooper began to realise that he didn’t have any control over the character, highlighted when he couldn’t stop Toho’s King Kong vs. Godzilla in 1962. In an effort to get the rights back, he went through his old documents to prove that he had only licensed the character to RKO Pictures for the original two movies, but couldn’t find anything. His only claim to ownership was through the film’s novelisation by his friend Delos W. Lovelace.
During the 1970s, the rights to King Kong rose again when producer Dino De Laurentiis purchased the remake rights from RKO Pictures for $200,000. Universal, on the other hand, claimed they already owned the remake rights from RKO. Over a four-day court case, Universal argued that the copyright on Lovelace’s novel had expired without renewal, making the character public domain. The Cooper estate, now headed up by Merian’s son Richard Cooper, claimed that due to the copyright expatriation, they now owned the movie rights and not RKO Pictures, but Judge Manuel Real declared that the character of King Kong was in fact public domain and free to use by anyone, so long as it did not copy the plot of the original 1933 movie which was owned by RKO Pictures. Universal’s remake plans for The Legend of King Kong were put on hold so De Lautentiis could make his own remake, who they cut a deal with for a percentage of the box office profits.
With all this in mind, Judge Sweet ruled in favour of Nintendo, chastising Universal for knowingly bringing this case to court and sending cease and desist letters when they knew full well they did not have the exclusive right to do so. “Throughout this litigation, Universal knew, as a result of the RKO litigation, that it had no rights to any visual image of King Kong from the classic movie or its remake,” Sweet noted. “Nonetheless, Universal, when it seemed beneficial, made sweeping assertions of rights, attempting to extract license agreements from companies incapable of or unwilling to confront Universal’s ‘profit center.'” Sweet also ruled that even if Universal did own the rights to King Kong, there weren’t enough comparisons between the property and Donkey Kong, saying the video game was “a parody” at best. The cease-and-desist letters were rendered null and void, and any company who paid Universal royalties could claim them back – which they did.
In an interesting and highly ironic twist, Judge Sweet also ruled that Tiger Electronics’ King Kong game was too similar to Donkey Kong, and Nintendo received $58 million from the profits as well as legal costs and other damages. Nintendo’s David took on Universal’s Goliath and won.
Not satisfied with this result Universal appealed in 1984, conducting over 150 surveys with arcade and restaurant owners to show there was confusion over King Kong and Donkey Kong. Although they conceded there could be some confusion, the court upheld the original verdict saying, “The two properties have nothing in common but a gorilla, a captive woman, a male rescuer, and a building scenario.” In 1986 Universal again tried to counter the verdict, but the courts sided again with Nintendo saying, “First, Universal knew that it did not have trademark rights to King Kong, yet it proceeded to broadly assert such rights anyway. This amounted to a wanton and reckless disregard of Nintendo’s rights. Second, Universal did not stop after it asserted its rights to Nintendo. It embarked on a deliberate, systematic campaign to coerce all of Nintendo’s third party licensees to either stop marketing Donkey Kong products or pay Universal royalties. Finally, Universal’s conduct amounted to an abuse of judicial process, and in that sense caused a longer harm to the public as a whole. Depending on the commercial results, Universal alternatively argued to the courts, first, that King Kong was a part of the public domain, and then second, that King Kong was not part of the public domain, and that Universal possessed exclusive trademark rights in it. Universal’s assertions in court were based not on any good faith belief in their truth, but on the mistaken belief that it could use the courts to turn a profit.”
Although its never been confirmed, there are those who believe Nintendo thanked John Kirby by naming their pink character after him. Rumour has it that Kirby was even sent a copy of the game, which he was humoured by. Howard Lincoln was placed on the board of directors for Nintendo, and named Executive Vice President.
The rights to King Kong are still a grey area, and near impossible to keep track of. In 1976 it was decided that three parties – RKO, Dino De Lautentiis Company (DDL) and the Cooper Estate – owned several parts of the license, while Universal owned the character and name not owned by the other parties. RKO own the original two pictures, DDL own their remakes, and the Cooper Estate owns the rights to use the character in novels and comics. Universal still own their rights, and have used it on theme park attractions and their 2005 remake by Peter Jackson, while The Cooper Estate licensed several comics and books based on the character, including the prequel novel Kong: King of Skull Island. The RKO Pictures library was purchased by Ted Turner in 1986, which was merged with Time Warner in 1996. DDL’s library is now owned by Studio Canal, and his remake and sequel King Kong Lives is the property of Paramount.
In 2013, Legendary Pictures struck a deal with Universal following their deal with Warner Bros expiring to announce prequel movie Skull Island, later re-titled to Kong: Skull Island. In 2015, Legendary announced another deal that meant they could take Kong: Skull Island to Warner Bros., so they could build to the crossover Godzilla vs. Kong, which is set for release in 2021.
Donkey Kong, on the other hand, belongs firmly to Nintendo.
Luke Owen
