Video games are amongst the most widely enjoyed forms of entertainment today. While video games are predominantly played by people in their adolescence, these games are making their way into a multimillion-dollar full-fledged industry that is based on competitive playing. With this level of involvement of games in the lives of people everywhere, it then comes as no surprise that there have been cases where popular characters of video games have come under the spotlight of intellectual property theft. Let’s take a look at a case riddled with twists featuring some of the world’s most popular movie and video game characters.
The case
When we picture the word “Mario”, we instantly imagine a character wearing a red plumber’s uniform, bouncing on platforms to save his princess from evil forces. And when we hear the phrase “King Kong”, our minds instantly jump to a massive gorilla waving his arms around, swatting at airplanes atop the empire state building. It may come as a surprise that the owning studios of these productions have in fact gone head-to-head in a rather interesting lawsuit regarding the theft of the idea of the popular oversized gorilla.
The movie King Kong was first released in the year 1933 by Merian C. Cooper. The production house for King Kong was RKO, which later went on to release subsequent sequels of King Kong in the following years. The movie franchise went on to do very well, earning their producers and directors large sums of money throughout the runtime of the movie. In the year 1981, Nintendo released their game Donkey Kong, where Donkey Kong was a large ape and would attempt to stop Mario (then called Jumpman) from reaching Pauline (Mario’s romantic interest, then called Lady). The game was a big hit and it was simply a matter of time before the game caught the eye of Universal Studios, who then apparently held the license for King Kong. Outraged at Nintendo and other game studios for blatantly copying the idea of King Kong, Universal Studios sternly ordered every agency selling products under the name of Donkey Kong to pay Universal Studios royalties for the misuse of Donkey Kong by way of cease-and-desist letters. Almost all the agencies reverted back with the royalty payments, except Nintendo.
Nintendo attempted to settle the suit outside the proceedings of a court in the year 1982 to which the Vice President of Universal Studios Robert Hadl responded by asking Nintendo to stop making copies of Donkey Kong. Nintendo’s attorney Howard Lincoln pointed out that the name King Kong had previously been used on multiple products that were in no way affiliated with Universal Studios, claiming that Universal Studios in fact did not have the rights to King Kong in the first place. Hadl then asked Nintendo to brace themselves for a lawsuit, claiming that Universal Studios saw lawsuits as a way of making money.
John Kirby was brought in by Lincoln to represent Nintendo in the case because he had a history of winning big-name lawsuits for companies like Sony. During the proceedings, Universal Studios claimed that Nintendo’s Donkey Kong and Universal Studios’ King Kong could easily be confused with each other and that the story line of the movie and game were also similar. To counterattack, Nintendo asked a representative to assure the court that the gameplay of Donkey Kong was in no way similar to the storyline of King Kong. Additionally, Nintendo went on to claim that Universal Studios did not own the rights for King Kong and shockingly enough, that Universal Studios were aware of this fact and still decided to demand royalties for King Kong despite knowing they did not have the rights for King Kong.
Historically, the rights of King Kong had always been a territory undefined. When King Kong was initially released by Cooper in 1933, the rights were firmly with Cooper. Later on, Cooper realized that other production houses were making movies with the character King Kong, and that he had no clear documents preventing them from doing so. Cooper tried to find papers to authenticate his rights but found that he had given the rights for only 2 movies to a production house called RKO Pictures and for a book written by his friend Delos W. Lovelace sometime in the decade of 1970, a whole decade before the release of donkey Kong by Nintendo. However, Cooper could not find documents stating that the license was given to RKO Pictures. During this time, Universal Studios wanted to make their own series of movies on King Kong but were stopped as the rights to King Kong were with RKO Pictures. Desperate to win King Kong, Universal Studios argued in court that the copyright on Lovelace’s novel (which was the only existing document proving ownership of any kind) had expired by then and that King Kong was therefore a public domain character. The court decided that King Kong was indeed in the public domain and therefore anyone could make their reproductions of the character as long as the story involving the character was not copied.
The presiding judge during the 1982 case of Nintendo versus Universal Studios kept all this in mind and reprimanded Universal Studios for knowing fully well that Universal Studios had themselves contested that King Kong was a public domain character but still asserted that they owned the character and even demanded royalties from agencies making use of King Kong. The presiding judge further ruled that the game Donkey Kong was not similar to the storyline of King Kong in any way and was “a parody” at best, thus solidifying Nintendo’s case against Universal Studios. The judge declared that any agency that had paid royalties to Universal Studios were free to demand the royalty fee back from Universal Studios and that all cease-and-desist letters from Universal Studios were rendered null and void. Further, the court found that a game released by a company called Tiger Electronics was very similar to Donkey Kong and thus ordered Tiger Electronics to pay Nintendo a sum of $58 million.
Universal Studios was the one to push this lawsuit against Nintendo in order to extract money from them by means of a character that they didn’t have the rights for. Universal Studios knew this in fact because a few years ago they themselves had gone to court to prove that King Kong was a public domain character, and anyone was free to use the character. Nintendo had initially planned to settle the matter outside of the court but went against the movie giant Universal Studios and even won with getting money from profits from a by-product of the ruling. This case shows us that it is never a good idea to underestimate the court or your opponents, and to assume that all secrets regarding ownerships and rights are out in the open for everyone to access. Universal Studios underestimated the court and Nintendo and subsequently ended up losing the case.
Author: Udit Sharma, Graduate student in Additive Manufacturing, Uppsala University, Sweden
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