Historical Hypocrisy: Donkey Kong, King Kong, & The Public Domain

from the monkey-see-monkey-do dept

Thu, Feb 21st 2013 3:51am — Timothy Geigner

Universal Studios seems to have some trouble establishing concrete ideas and positions when it comes to copyright on its own products. In recent iterations, this has manifested itself in the form of their protesting a parody of 50 Shades of Grey while conveniently ignoring that work's birth in the form of Twighlight fan-fiction. Alternatively, there are times when Universal doesn't even seem to know what it holds the rights to and what it doesn't. Well, it turns out that these stumbles aren't exactly a new experience for Universal.

Chris ODonnell writes in with the historical and hysterical case of Universal suing Nintendo over Donkey Kong shortly after Universal itself had argued that the property the dispute was based on, King Kong, was in the public domain. See, back when Michael Jackson was still best known for his music, Nintendo came up with their iconic Donkey Kong character, admittedly in some part inspired by the famous King Kong character. This inspiration, it turns out, came after the fact, but that didn't stop Universal Studios from filing suit against Nintendo, because they had released a remake of King Kong a few years earlier. While some within Nintendo wanted to simply settle with Universal and move forward, others within sought out the words of a key ally to fight against them, and that ally was Universal Studios.

Universal’s King Kong movie debuted in 1976, but it wasn’t an original story. Rather, the movie was a remake of a movie with the same title made in 1933 by RKO General. The 1976 remake came with its own round of litigation, with many parties claiming to have at least partial rights over the name, characters, and plot of the movie. Universal, however, argued that no one did, and that the characters and plot were in the public domain. In the subsequent litigation with Nintendo, the court noted this inconsistency, using it as part of the basis for finding that Nintendo’s Donkey Kong game did not infringe upon Universal’s rights (if any) over King Kong. Nintendo prevailed, and, when Universal appealed, the next court admonished Universal for its inconsistent legal logic.

Ah, sweet, sweet hypocrisy. With one hand, hitting Nintendo over the head with the IP hammer, while holding a shield against another IP hammer with the other. The court was not pleased, noting that Universal's president, Sidney Sheinberg, was clearly well versed in the intellectual property status of King Kong via the earlier lawsuit, and to then pretend the company held rights in it was clearly a move to abuse the law:

Finally, Universal's conduct amounted to an abuse of judicial processes, and in that sense caused a larger harm to the public as a whole. Depending on the commercial results, Universal alternatively argued to the courts, first, that King Kong was 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.

As noted, Nintendo was victorious and Donkey Kong was released, since becoming its own franchise and propelling Nintendo so such status that it can initiate its own legal action based on its intellectual property.

Such a wonderful web intellectual property tends to weave.

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Filed Under: copyright, donkey kong, king kong, public domain
Companies: nintendo, universal studios

48 Comments

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Kurata, 21 Feb 2013 @ 3:55am

While I do agree with the point you make, I fail to see why this warranted a full article dedicated just to reminding us of an event that happened long ago.
This should have been shortened and put as part of another news in my opinion.
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- PaulT (profile), 21 Feb 2013 @ 4:34am
  
  Re:
  I disagree. It's always worth noting that not only is the entertainment industry is full of hypocrisy, overbearing legal attacks and short-sighted tactics, but that it always has been. It's worth being reminded that these people don't back down even when proven to be absolutely in the wrong, and that they'll reject sensible solutions because they don't like to cede control (which I assume would be Universal's main motivation for refusing Nintendo's settlement offer).
  
  If you don't like that, skip to the next article. One thing that mystifies me is people complaining about what's being written about here. No-one forces you to read, nor do they demand payment from you - and if the site's decision over which articles to post are decided by any metric other than what interests the author, it's not going to be whether or not someone said "I don't like it" in the comments...
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  - Kurata, 21 Feb 2013 @ 5:07am
    
    Re: Re:
    What mistify me even more is people like you, who thinks complaints should never be voiced, and instead be ignored.
    It is also hard to decide whether or not an article is worth not reading or reading without reading it.
    
    You as a defender of this site, should know by now Techdirt promotes free speech, and criticism as well as opinions (since criticism is an opinion anyway) is welcome.
    If you didn't like my comment you could also have just skipped it and read the next one instead. I actually never understood why people reply to the posts I make when they dislike it.
    
    By the way, complaints are also called feedbacks. I wonder if Techdirt values feedbacks or not.
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    - Anonymous Coward, 21 Feb 2013 @ 5:11am
      
      Re: Re: Re:
      "By the way, complaints are also called feedbacks."
      
      They are also, sometimes, referred to as childish.
      [ link to this | view in chronology ]
    - PaulT (profile), 21 Feb 2013 @ 5:32am
      
      Re: Re: Re:
      "It is also hard to decide whether or not an article is worth not reading or reading without reading it."
      
      Yes, and if my reaction to an article is that it didn't interest me, I click on to the next one. If I'm indifferent, I rarely comment on it, although I might see what comments were made.
      
      "You as a defender of this site, should know by now Techdirt promotes free speech, and criticism as well as opinions (since criticism is an opinion anyway) is welcome."
      
      Constructive criticism, yes. But when your entire comment is "this article is not relevant to my personal interests", it's pretty pointless. Either TD posts stories purely because they interest the author or they use metrics like page views, number of comments, etc. to judge which subjects interest people. Even if they use comments to judge the subject matter discussed, the fact that I did find the article interesting nullifies your complaint straight away - unless you think that TD should just be listening to your opinion and not that of people with the opposing view.
      
      Ironically, your comments and driving more page views, both from myself and you (as well as perhaps others), meaning that if those are the metrics the site uses to decide whether to post more articles like this, you've just encouraged them to write more.
      
      Oh, and you know what also constitutes criticism? My reply to your comment. Deal with it.
      
      "I actually never understood why people reply to the posts I make when they dislike it."
      
      I replied because I find that attitude particularly annoying, and to point out that while you didn't like the article, I did - and I explained my reasons why. I comment to point out that your view isn't the only view. Yet, you still felt the need to reply to what I said.
      
      "I wonder if Techdirt values feedbacks or not."
      
      They probably do. But one person whining in the comments that they don't like a particular subject isn't really feedback. Either go "meh" and carry on (as I usually do if a subject or article doesn't interest me), or use the feedback link at the bottom of the page. If you whine in public, expect a reaction from other members of the public.
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      - kurata, 21 Feb 2013 @ 6:19am
        
        Re: Re: Re: Re:
        And thus I made my point: I have the right to express ly opinion, you do too, and you can't stop me from saying that I find this article incomplete.
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        Anonymous Coward, 21 Feb 2013 @ 6:26am
        
        Re: Re: Re: Re: Re:
        Nah - nah ... so there
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        PaulT (profile), 21 Feb 2013 @ 6:57am
        
        Re: Re: Re: Re: Re:
        Christ, are you this dumb? I'm not stopping you from stating your opinion, nor have I expressed a desire to stop you. But, if you make a pointless comment, I'm equally free to point out how pointless it is. Freedom of speech goes both ways - and your right to expression doesn't mean I suddenly lose my right to criticise it.
        
        I also notice you haven't addressed my counterpoint where I stated the reasons for my own opinion on the article being different. You just whined about a fictional attempt at censorship when I pointed out how silly it was to complain that the article wasn't written the way *you* wanted to be written.
        
        Oh, and look up the word "incomplete" in the dictionary. That's not what you originally said - you said "This should have been shortened and put as part of another news (sic)". That's not saying it's incomplete, it's bitching about the fact that it was a complete article by itself. Sorry, but Techdirt isn't your personal news repository, and people have opinions different from you - and that includes others finding articles useful or interesting that you don't.
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        G Thompson (profile), 21 Feb 2013 @ 7:33am
        
        Re: Re: Re: Re: Re:
        So let me get this right.
        
        You complain about an article
        Someone expresses there opinion on your complaint
        You then complain about them complaining by stating that you have the right to an opinion alluding that they don't.
        
        And it's all over you finding the article incomplete.
        
        Well I have news for you, I and numerous others who will read your pedantic and petulant ranting think that the only thing incomplete at the moment is YOU!
        
        See you're probably not a complete idiot but keep going like this and surely you will get there.
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- Anonymous Coward, 21 Feb 2013 @ 7:01am
  
  Re:
  "While I do agree with the point you make, I fail to see why this warranted a full article dedicated just to reminding us of an event that happened long ago."
  
  "Those who cannot remember the past are condemned to repeat it."
  --Georges Santayana
  
  That's why, boy.
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- Anonymous Coward, 18 Apr 2018 @ 2:55pm
  
  Re:
  Fuckin hell. This whole comment chain is physical evidence of why I can't stand people.
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Anonymous Coward, 21 Feb 2013 @ 4:08am

So, Universal was a copyright Tank?
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- Anonymous Coward, 21 Feb 2013 @ 5:14am
  
  Re:
  I think you mean IS not was. Do you really think they will stop this sort of nonsense just because a court chastises them for it? They may have not gotten away with it that time but that doesn't mean that they won't try it again and again. This is why there needs to be significant penalties for this sort of thing.
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Anonymous Coward, 21 Feb 2013 @ 4:23am

as with all the entertainment industries, their lackeys and similar, they want to be able to use any means necessary, including the courts, to aid them in making money and removing the rights of others. then it wants to do the exact opposite when it suits. why the courts cannot always see what these fuckers are up to and just tell them to sod off, update their business models and thinking and join the others in the modern world, the quicker everyone can get on trying to make the world a better, more enjoyable place to be. as it is, we as a civil society are being hindered, being held back by an industry that wants what ever it can get, as long as it doesn't have to give anything in return!
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Anonymous Coward, 21 Feb 2013 @ 4:58am

What about Hong Kong?
Who's taking care of their trademark rights?
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- Dark Helmet (profile), 21 Feb 2013 @ 5:05am
  
  Re:
  I believe Hong Kong's lawyer's name is Phooey. Wait....
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  - silverscarcat (profile), 21 Feb 2013 @ 5:52am
    
    Re: Re:
    Number one super guy!
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    - Rich, 21 Feb 2013 @ 9:41am
      
      Re: Re: Re:
      Quicker than the human eye!
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  - G Thompson (profile), 21 Feb 2013 @ 7:35am
    
    Re: Re:
    That's just Wong
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- Anonymous Coward, 21 Feb 2013 @ 10:23am
  
  Re:
  Well... from what I've heard is that King Kong went to Hong King to play with his Ding Dong.
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  - Anonymous Coward, 21 Feb 2013 @ 10:24am
    
    Re: Re:
    Correction.. He went to play Ping Pong with his Ding Dong.
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Anonymous Coward, 21 Feb 2013 @ 5:08am

Familiar
Sounds like the same thing Apple and Disney do.
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- Anonymous Coward, 21 Feb 2013 @ 5:15am
  
  Re: Familiar
  Yup, I don't think anyone claims the rights to hypocrisy, although it would be entertaining to watch the ensuing court battles.
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  - Anonymous Coward, 21 Feb 2013 @ 8:46am
    
    Re: Re: Familiar
    Yeah, I think monopoly rights to hypocrisy goes straight to politics.
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- btrussell (profile), 21 Feb 2013 @ 3:43pm
  
  Re: Familiar
  Lets not forget sony.
  
  https://blogs.kde.org/2013/02/21/sony-pirates-kde-artwork
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Not an Electronic Rodent (profile), 21 Feb 2013 @ 5:18am

Not so much...
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.
Sadly, the word "mistaken" has little or no place in that sentence. I strongly suspect universal's belief comes from every other time they and others like them do get to use copyright law exactly this way.
And indeed why shouldn't they think they can use copyright law any way they please? They paid for it and wrote most of it after all...
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Prashanth (profile), 21 Feb 2013 @ 5:31am

The real message about Nintendo
I think the last two paragraphs need to be emphasized more. The article on the whole seems like a happy ending because Universal was smacked down for its hypocrisy and the people and Nintendo were able to get what they wanted, while in reality, Nintendo can now use the same tactics to get what it wants.
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- Ninja (profile), 21 Feb 2013 @ 5:49am
  
  Re: The real message about Nintendo
  Not only that but Nintendo itself is quite aggressive concerning copyright.
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  - Anonymous Coward, 21 Feb 2013 @ 7:04am
    
    Re: Re: The real message about Nintendo
    "Not only that but Nintendo itself is quite aggressive concerning copyright."
    
    In Nintendo's case, they actually hold the copyrights and trademarks!
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The Real Michael, 21 Feb 2013 @ 5:37am

To clear the matter
The only reason Nintendo won against this blatant attempt by Universal at corporate censorship and an easy handout, i.e. entitlement, was because they're a well-established company. Had it been Universal vs some smaller company or some no-name independent creator, the former would've likely been favored by the court simply for being bigger. Our legal system is a mockery of justice and fairness.
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- Anonymous Coward, 21 Feb 2013 @ 6:37am
  
  Re: To clear the matter
  Thing is though, at the time Nintendo was a tiny company, especially in video games, and only really hit it big because DK was so successful. Of course, one could argue that by the time the suit came out, Nintendo was significantly bigger, but still.
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- Rikuo (profile), 21 Feb 2013 @ 10:02am
  
  Re: To clear the matter
  Nintendo at the time of that case WAS the smaller company with no name independent creators, yet they still won.
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Anonymous Coward, 21 Feb 2013 @ 5:44am

The most important line
This further indicates that Universal used litigation and the threat of litigation merely to obtain quick settlement payments from third parties, and not to bring its claims to definitive adjudication.

And yet they continue to do so.
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Julian Perez, 21 Feb 2013 @ 5:52am

This is a pretty well known "hoisted by their own petard" story in computer and gamer culture. It's hard to imagine now, but there was a time when goliath Nintendo was the little guy, a penny-ante operator pushed around by big guys like Universal.

By the way, supposedly, the American lawyer who came up with this strategy and defeated Universal so definitively later had the Nintendo character "Kirby" named after him.
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- Jay (profile), 21 Feb 2013 @ 6:21am
  
  Re:
  Hold the phone... Nintendo was the little guy only in this regard. Nintendo's history is revolved around pushing the little guy around. It pushed Gunpei Yokoi, inventor of Samus and the Virtual Boy asking withthe Game Boy, out of the company when his products didn't sell well.
  
  It bullied third parties for years before Sony got fed up to try the Playstation. And in terms of its customers... Have you tried using their online services? Nintendo nostalgia is very dangerous.
  
  Their business practices have been horrible for markets and that shouldn't be ignored.
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  - Lowestofthekeys (profile), 21 Feb 2013 @ 6:50am
    
    Re: Re:
    I can't imagine any of the little guys would not, when given the opportunity, throw around their metaphorical "big balls" in a mad grab for a little extra cash.
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  - crade (profile), 21 Feb 2013 @ 7:24am
    
    Re: Re:
    Horrible, maybe.. just not quite as bad as Sony and Microsoft.
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    - Jay (profile), 21 Feb 2013 @ 8:18am
      
      Re: Re: Re:
      During the NES era, they were worse. If I had the time, I would bear their entire history out, but believe me that their licensing program for the NES was unnecessarily expensive, complicated, and took back gaming by a number of years in its infancy. I'm just glad for the PC movement that is looking to surpass consoles so that we won't need consoles in the same capacity as gate keepers in the next decade.
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      - crade (profile), 21 Feb 2013 @ 10:35am
        
        Re: Re: Re: Re:
        Their licensing may have been expensive, etc, but you would have to do some significant history rewriting to make the claim that they didn't also yank video games back from the bowels of the abyss.
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  - Wally (profile), 21 Feb 2013 @ 8:46am
    
    Re: Re:
    It was because of this particular lawsuit that they started to push the "little people" around. It may have bullied third parties...but it never complained about third parties having set up development studios to get around those rules. Konami in particular had Ultra.
    
    Ultra created:
    
    Metal Gear (June 1988)
    Skate or Die! (December 1988)
    Gyruss (February 1989)
    Q*bert (February 1989)
    Teenage Mutant Ninja Turtles (June 1989)
    Defender of the Crown (July 1989)
    Silent Service (December 1989)
    Kings of the Beach (January 1990)
    Snake's Revenge (April 1990)
    Mission: Impossible (September 1990)
    RollerGames (September 1990)
    Teenage Mutant Ninja Turtles II: The Arcade Game (December 1990)
    Ski or Die (February 1991)
    Base Wars (June 1991)
    Nightshade (January 1992)
    Star Trek: 25th Anniversary (February 1992)
    Pirates! (October 1992)
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- Anonymous Coward, 21 Feb 2013 @ 9:54am
  
  Response to: Julian Perez on Feb 21st, 2013 @ 5:52am
  Nope. Actually the. Lawyer was named Howard......something. Walters? Lincoln? He was granted the right to use the name "S.S. Donkey Kong" for boats as a reward for the case, and went on to a position of prominence with NOA. I believe he may currently run the Seattle Mariners, though don't quote me on that
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crade (profile), 21 Feb 2013 @ 7:19am

"the mistaken belief that it could use the courts to turn a profit"

While that thought was definately been shown wrong since then. They've been doing very well using that belief as a foundation.
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GMacGuffin (profile), 21 Feb 2013 @ 7:23am

In case anyone wanted to see what "estoppel" looks like, this is it.
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- G Thompson (profile), 21 Feb 2013 @ 7:45am
  
  Re:
  yeah but the promissory side still has boring crud (read as "OMG My brain still hurts having read and been tested on them" ie: Hughes v Metro rail ) cases..
  
  Now if only all cases were as brilliant as this one here ;)
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  - GMacGuffin (profile), 21 Feb 2013 @ 9:17am
    
    Re: Re:
    Good point. This would have been a way more interesting case study to my generation. I never remember case names past "Intl . Shoe" but I'd certainly remember "King v. Donkey"...
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Anonymous Coward, 21 Feb 2013 @ 8:27am

I never saw the movie, because I had played the game I didn't feel I needed to especially as over an hour of watching live action guy jumping over things and climbing ladders just seemed like such a dumb idea.
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Wally (profile), 21 Feb 2013 @ 8:40am

One of the more interesting aspects as to why you pay for tickets to watch a play is that production is not the only thing that costs money....in some cases the licensing outweighs all other costs.

What should be noted is that Donkey Kong was in fact an original idea from Nintendo. There were inspirations from the original King Kong (and good grief how could ANYONE seriously confuse Donkey Kong with King Kong...I will get to it...but not in favor of Universal).

OK, to put this into perspective, there were a lot of bootleg and clone versions of Donkey Kong...it may give an insight as to Nintendo's draconian game development rules concerning the NES:

A clone named "Crazy Kong" had a brochure that whose cover had a character on it that looked eerily similar to King Kong.
http://upload.wikimedia.org/wikipedia/en/e/ed/Crazy_Kong_Cover.jpg

It should be noted that Nintendo became particularly litigious after that lest they have to spend more on defending themselves (which apparently costs a lot more than suing about 50 people) and their brand.

Now, here we are today, the same exact industry (the MPAA) is asking for take-down after take-down....all they do is fish for money on things they don't own. Nintendo may have been draconian...but at least they understand the concept of trademark and public domain.
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akp, 21 Feb 2013 @ 9:09am

Oh...
Hello fellow "Now I Know" subscriber :P
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