Super Mario - Jeff Ryan [16]
In a possibly perfidious piece of brinkmanship, Nintendo arranged a special meeting with Universal, to discuss matters. These sorts of meeting are only called when there’s something to discuss, i.e., Nintendo caving in to Universal’s demands. Universal’s president personally attended, wanting to see the upstart Nintendo fall on its own sword and offer him royalties. But Lincoln and Arakawa merely reiterated their already-stated belief: we’re not liable and won’t be paying you anything. To quote Ice Cube, it was on like Donkey Kong.
“His reaction was shock,” Lincoln recalled. Universal made movies, and its movements seemed reflective of this: big, bombastic, very entertaining, but as ephemeral as the fog around Skull Island. Nintendo, on the other hand, was a game company. Its lawyer just scored a major tactical victory, without the pieces on the board moving a whit.
As if the suit wasn’t complicated enough, a new player entered: Tiger Electronics. Tiger had exclusively licensed King Kong from Universal for a handheld game. Universal realized that if Tiger kept that exclusive license, and Donkey Kong was shown to be the same as King Kong, then only Tiger would be able to sell Donkey Kong games. Furthermore, Tiger’s King Kong game was a pretty blatant swipe from Donkey Kong. (The layers of irony are like a lasagna.) Universal rejected the game. Tiger redesigned it to have bombs instead of barrels, and straight instead of crooked platforms. Also, the hero was given a fireman’s hat.
Universal continued its aggressive actions, officially suing not only Nintendo but six other companies to whom Nintendo had licensed Donkey Kong. It collected royalties from all but two of them: Milton Bradley for the Donkey Kong board game (which refused to pay) and Ralston-Purina for Donkey Kong cereal (which offered a measly five grand, which Universal rejected). Combined with Coleco’s payments, Universal was already making steady money off of a case that hadn’t even started yet. This was the benefit of lawyering up: smaller companies backed down so fast, it was almost a legal form of theft.
Nintendo was seeing this through to the courtroom, though. Howard Lincoln had pulled in a hotshot trial lawyer named John Kirby to mount the Nintendo defense. Universal City Studios Inc. v. Nintendo Co. Ltd. lasted seven days. Kirby listened to Universal’s legal team explain its case: the two have similar plots, they’re both apes named Kong, so in conclusion give us the money. Kirby, in turn, highlighted every difference between the game and the film. He read deposed statements from Shigeru Miyamoto, explaining how the game was designed.
Then, Kirby sprung the trap. In 1975, Universal had sued RKO, the original makers of King Kong. Universal, in a case-winning argument, had proved that King Kong was in public domain, since the movie was from 1933. Universal didn’t need to pay a dime to the “owners” of King Kong, because anyone could do whatever he wanted with King Kong. Kong was as unownable as Huck Finn. Then, Kirby asked for a summary dismissal of the suit. Granted.
The word “hubris” might not be strong enough for Universal at that time. It had, after all, knowingly collected millions of dollars, and started a half dozen lawsuits, all on a claim that it had proven, in the public record no less, to be bogus. How did it think it was going to succeed?
Judge Robert W. Sweet tore into Universal, in a blow-by-blow beating as thorough as it was brutal. First, Universal didn’t own King Kong. Second, even if it did, Donkey Kong wasn’t a copy of King Kong. Third, even if it was, it would be considered parody, which is legal.
Sweet was just getting started. Any company Universal had hit with cease-and-desist letters had the right to sue Universal to get back its “royalty” payments and more. There was one clear copyright violation that came to light, though. Judge Sweet felt Tiger’s King Kong game, even with its superficial changes (a