As we celebrate what’s (probably? maybe?) Donkey Kong’s 30th birthday, let’s today take a look at the 1983 court case which nearly brought a premature end to Nintendo’s big ape.
Our story begins in 1982, with the first of many idiotic decisions made by Universal Studios.
The studio’s president at the time, Sid Sheinberg, had seen the booming home video game market and felt his company should be getting in on the action. It didn’t take long for his research to turn up the fact a game called Donkey Kong was a big hit with the kids, and it didn’t take long for Sheinberg and Universal vice president Robert Hadl to come to the conclusion that Donkey Kong was infringing on their rights to the King Kong brand.
So in April 1982 Nintendo and Coleco, which at the time was licensing the game for its consoles (remember, this is before the NES), were threatened with legal action. Nintendo were, absurdly, told to cease all sales of the game, get rid of any unsold copies they were sitting on and give Universal all the money they’d ever made from the game.
Rather than bow to the bullying of the big company (Nintendo at the time being a much smaller outfit than it is today), Nintendo of America’s attorney Howard Lincoln convinced the company to fight the looming court case, as he believed Universal didn’t have a legal leg to stand on.
After discussions between Nintendo and Universal failed to reach an agreement on the situtation, a lawsuit was filed in June 1982. In addition to filing against Nintendo, Universal also threatened six other companies, all of them involved in licensing Donkey Kong for other uses (TV shows, board games, etc).
Universal claimed that a game about a giant ape throwing barrels and a man in overalls was so close to the plot of King Kong that it constituted an act of copyright infringement. One of Nintendo’s arguments was that a movie about a giant ape that’s captured on an island, breaks free, kidnaps a sexy lady and punches airplanes had nothing to do with its game.
Its other argument, though, and one pointed out by Nintendo’s lawyer for the case John Kirby, was that Universal had no grounds to pursue copyright over King Kong as the story was, being so old and oft-used, in the public domain. Crucially, he pointed out that Universal itself had proven this in court in 1975.
Nintendo’s case also featured a declaration from legendary designer Shigeru Miyamoto, saying that the reason the game used the word “Kong” in its title was because in Japan “King Kong” was slang for any kind of giant ape.
The case, which went ahead in late 1983 (and which you can read in its entirety here) only lasted a week, Judge Robert Sweet ruling swiftly in Nintendo’s favour. Rubbing salt in Universal’s wounds was the fact Sweet also found that a game called King Kong, which Universal licensed to Tiger in retaliation to Donkey Kong, was infringing on Nintendo’s copyrights, and that the game company was thus liable to a cut of its profits.
Nintendo instead accepted damages from Universal, and while the case would linger on with appeals for a further three years, each found in Nintendo’s favour, ensuring not only the continued success of Donkey Kong but of the company itself, whose fledgling American operations would have been under serious threat had they lost the case.
All’s well that ends well, though, and for Nintendo the outcome couldn’t have been better. Not only was Donkey Kong free to resume his place as one of the company’s great mascots, but Howard Lincoln would go on to lead Nintendo of America and champion the release of the Nintendo Entertainment System. Even attorney John Kirby came out on top: in addition to rumours that Nintendo’s Kirby character is named after him, he was given a sailboat by Nintendo as thanks for his work in the case, which was named – what else – Donkey Kong.
If you’d like to read more about the case, the book Game Over: Press Start To Continue by David Sheff is a good place to start.
FUN FACT: Between 1982 and 1988, there were fourteen versions of Donkey Kong appearing on non-Nintendo platforms. They were published by the likes of Coleco, Ocean and Atari.
Total Recall is a look back at the history of video games through their characters, franchises, developers and trends.
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