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Donkey vs. King: The Day Nintendo Fought Hollywood and Won

Easy wins weren't common for the video game industry of the 80s.
May 26, 2015, 5:00am
Image: Nintendo

We're enjoying an era in video games when the revenue of a single Grand Theft Auto game can blow away the entire film and music industry, raking in $1 billion in just a couple of days after launch. But easy wins weren't common for the video game industry of the 80s. Not until Nintendo told Hollywood to shove its hypocrisy up its legal ass, that is.

In 1981, way before film and game studios finally started to get along and decided to produce decent movie adaptations, Nintendo released a little arcade game called Donkey Kong, created by based god of video games, Shigeru Miyamoto. His original idea was making a licensed Popeye game, in which the spinach-stoned sailor saves Olive from a barrel-throwing Brutus. Nintendo didn't secure the rights for the character, so Miyamoto had to work with a mustachioed plumber unceremoniously named Jump Man (and later reborn as Mario), who had to save a blond girl named Pauline from the ire of his crazy pet ape, Donkey Kong.

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The game was an instant success and became a fixture in any decent arcade across the US. It also caught the attention of Universal Studios, which had released a remake of King Kong a few years prior.

Sid Sheinberg, the president of MCA and Universal City Studios, and Robert Hadl, one of the company's top lawyers, already looking into properly establishing the company in the video game business. And upon review, they decided that Donkey Kong infringed on their company's intellectual property.

To start their attack run, they first went for a video game company called Coleco, which was licensing Donkey Kong for US distribution on home consoles. Following a terse meeting with Coleco president Arnold Greenberg in April, 1982 in which Sheinberg threatened to sue the company, Greenberg agreed to pay a 3 percent royalty on Donkey Kong's net sales price.

Next stop was at Nintendo. In the early 80s, Nintendo was still an unknown electronic gaming company that just settled in Seattle from Japan, so Universal thought that Nintendo would run scared as soon as its lawyers came. Even the head of Nintendo's US operations at the time, Minoru Arakawa, thought that it would be easier to settle, but Nintendo attorney Howard Lincoln suggested that they could fight back and win.

Lincoln knew that there was something fishy about Universal's copyright claim, so he did his homework. Lincoln found out that Universal was involved in a trademark case about using the King Kong name for its recent remakes. Curiously, Universal own defense in this case stated that King Kong, first introduced in a 1933 motion picture produced by RKO General, was in fact in the public domain. That meant that Universal was taking two conflicting legal approaches to defend its King Kong interests.

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Universal and Nintendo finally went to court, which led to Lincoln showing an overwhelming collection of evidence that proved not only that Nintendo wasn't infringing anything, but also that Universal was being hypocritical.

US District Court Judge Robert W. Sweet decided that Universal couldn't claim the rights to King Kong and that the Donkey Kong game had nothing to do with their own furry ape. On top of that, it got so ugly for Universal that the judge determined that Tiger Electronics' King Kong handheld game, which Universal had previously licensed the King Kong name to, actually looked too much like a rip off of Donkey Kong, so Nintendo was given the option of taking Universal's licensing fees for that title too. (The company opted to take statutory damages of $56,689.41, plus legal fees.)

We're enjoying an era in video games when the revenue of a single Grand Theft Auto game can blow away the entire film and music industry, raking in $1 billion in just a couple of days after launch. But easy wins weren't common for the video game industry of the 80s. Not until Nintendo told Hollywood to shove its hypocrisy up its legal ass, that is.

In 1981, way before film and game studios finally started to get along and decided to produce decent movie adaptations, Nintendo released a little arcade game called Donkey Kong, created by based god of video games, Shigeru Miyamoto. His original idea was making a licensed Popeye game, in which the spinach-stoned sailor saves Olive from a barrel-throwing Brutus. Nintendo didn't secure the rights for the character, so Miyamoto had to work with a mustachioed plumber unceremoniously named Jump Man (and later reborn as Mario), who had to save a blond girl named Pauline from the ire of his crazy pet ape, Donkey Kong.

Advertisement

The game was an instant success and became a fixture in any decent arcade across the US. It also caught the attention of Universal Studios, which had released a remake of King Kong a few years prior.

Sid Sheinberg, the president of MCA and Universal City Studios, and Robert Hadl, one of the company's top lawyers, already looking into properly establishing the company in the video game business. And upon review, they decided that Donkey Kong infringed on their company's intellectual property.

To start their attack run, they first went for a video game company called Coleco, which was licensing Donkey Kong for US distribution on home consoles. Following a terse meeting with Coleco president Arnold Greenberg in April, 1982 in which Sheinberg threatened to sue the company, Greenberg agreed to pay a 3 percent royalty on Donkey Kong's net sales price.

Next stop was at Nintendo. In the early 80s, Nintendo was still an unknown electronic gaming company that just settled in Seattle from Japan, so Universal thought that Nintendo would run scared as soon as its lawyers came. Even the head of Nintendo's US operations at the time, Minoru Arakawa, thought that it would be easier to settle, but Nintendo attorney Howard Lincoln suggested that they could fight back and win.

Lincoln knew that there was something fishy about Universal's copyright claim, so he did his homework. Lincoln found out that Universal was involved in a trademark case about using the King Kong name for its recent remakes. Curiously, Universal own defense in this case stated that King Kong, first introduced in a 1933 motion picture produced by RKO General, was in fact in the public domain. That meant that Universal was taking two conflicting legal approaches to defend its King Kong interests.

Universal and Nintendo finally went to court, which led to Lincoln showing an overwhelming collection of evidence that proved not only that Nintendo wasn't infringing anything, but also that Universal was being hypocritical.

US District Court Judge Robert W. Sweet decided that Universal couldn't claim the rights to King Kong and that the Donkey Kong game had nothing to do with their own furry ape. On top of that, it got so ugly for Universal that the judge determined that Tiger Electronics' King Kong handheld game, which Universal had previously licensed the King Kong name to, actually looked too much like a rip off of Donkey Kong, so Nintendo was given the option of taking Universal's licensing fees for that title too. (The company opted to take statutory damages of $56,689.41, plus legal fees.)

This was a huge win for Nintendo, which one a pair of appeals to follow. It was a huge deal for the whole video game business too, since it underlined the increasing power these companies were getting through the 80s and that other well-established corporations couldn't simply bully them into oblivion.This was a huge win for Nintendo, which one a pair of appeals to follow. It was a huge deal for the whole video game business too, since it underlined the increasing power these companies were getting through the 80s and that other well-established corporations couldn't simply bully them into oblivion.