Super Mario - Jeff Ryan [15]
Donkey Kong Jr. wasn’t what anyone expected for a sequel, but no one expected Donkey Kong to come out of the guts of a space shooter. Nintendo was virtually printing cash by putting anything with Mario or Donkey Kong’s face on it, so it crossed its corporate fingers and sent the game out into the world of 1982.
It was a hit. Notably, it was a different enough game from Donkey Kong—not a remake, not an improvement, but a new series of levels to conquer—that it seemed to have an almost negligible effect on the popularity of the original. Nintendo and Mario would learn this lesson well: a franchise character could appear in various different types of games and not glut the market—provided the games were all suitably different from each other. (Later franchises from Army Men to Star Wars failed to learn this, to their dismay.)
Coleco, which was still preparing its dominant ColecoVision, was contacted by MCA Universal, which wanted to invest in the company. As reported by Steven Kent in The Ultimate History of Video Games, the investment pitch in Los Angeles, including a walk-on visit by Universal’s wunderkind Steven Spielberg, was more assassination than assignation. Once the two companies’ presidents were in the same room, Universal’s president dropped the pretense of an investment and threatened to sue (read: destroy) Coleco if it shipped the ColecoVision with Donkey Kong. Donkey Kong, Universal felt, was an infringement on its own King Kong character.
A telex (this was before e-mail) laid it on the line to Coleco: destroy all Donkey Kong property, stop any and all marketing, and give us every cent you’ve made off the ape. Universal sent the same telex to Nintendo of America. Coleco, desperate to have an unblocked path to release the ColecoVision, quickly agreed to fork over 3 percent of net profits to Universal. The profit-slice turned out to be worth almost $5 million. Coleco didn’t inform Nintendo about this, which seems puzzling, since the lawsuit implies that Nintendo had licensed an illegal product.
Nintendo’s initial response to the telex was similar to Coleco’s: let’s pay up to get rid of this quickly. They certainly had enough money lying around: $5 million of it might save a lawsuit. Anyone in gaming knew that success drew lawsuits: if not from Atari or Magnavox, then Universal. Wait, how about $7 million?
Then, Nintendo of America’s lawyer Howard Lincoln had an epiphany. Lincoln, formerly Al Stone and Ron Judy’s attorney, had the previous year arranged for trademark protection for Donkey Kong, paving the way for millions in lucrative licensing fees. Millions and millions, in fact. Nintendo had the money to fight this, if it wanted. It wasn’t a six-person start-up anymore. Furthermore, Lincoln did some research and realized Nintendo had a tremendous case against Universal. Donkey Kong and King Kong were different animals. Arakawa was chagrined to not just pay some hush money, as Yamauchi wanted. But Lincoln convinced him it was the right thing to do.
A three-party meeting was held in Los Angeles, Universal’s backyard, to attempt to straighten things out. Arakawa and Lincoln attended for Nintendo, along with reps for Universal and Coleco (who still hadn’t told Nintendo it had capitulated). Nintendo said Universal was, to skip the legalese, full of it. There were lots of other unlicensed King Kong products on the market, and Universal hadn’t gone after any of them. This was about Nintendo’s money. Coleco sheepishly tried to get Nintendo to fold to Universal. But Nintendo wasn’t budging.
Universal promised Nintendo it would send a chain of title for King Kong, documented proof that it owned the property. That would be the easy part of the legal battle, of course: the hard part was proving that Donkey Kong was a rip-off of King Kong. No one had ever asked a judge or jury to decide how close a video game had to be to impinge on a film. But no chain of title arrived in the mail at Redmond. When Nintendo