Wednesday, October 17, 2007

Kong vs. Kong: Universal, Nintendo, and Copyright

I love video games. I can still remember the times I used to walk into my local video game arcade, this is back when arcades were a hangout. The arcade was called "The Outer Limits" and it featured all the latest quarter vacuums. Within only a couple of years the place would become a dive bar. But for one brief flicker of time's candle, this was the place to hang out after school and in the summer.

One particular day, I noticed there was a new machine with a very long line waiting to play. Quarters were lined up like crazy, as players marked their turn on the machine. Like I wrote, this was back in the day. What was this new and exciting game? Was it the original Street Fighter? Was Tapper? Or even Dragon's Lair? No, this was something completely different. It was a game that combined my childhood love of Kaiju, with the natural attraction of cartoon characters jumping over rolling barrels. That's right, the game was Donkey Kong.

I was ten years old. Even though I noticed the huge appeal of the game, and even though I played it many times myself, I could never imagine the revolution in the video game industry that this one game would have. According to an article by Spanner over at The Escapist -- an excellent online video game magazine -- without the Donkey Kong video game, the today's gaming industry would be very different. Nintendo would likely not exist and based on Spanner's narrative I can imagine that the home video game console might have died in the video game market crash of 1984. If Nintendo hadn't resurrected the home video game console with their NES system, we might not be playing them today. Without Donkey Kong, Nintendo might never have released that amazing little box. Not too shabby for a game that's title, according to Spanner, is a mistranslation of "Stubborn Gorilla."

Spanner's article about Donkey Kong is important to us hear at Cinerati for a couple of reasons.

It is a story of hope about a company that became successful during turbulent times in a particular facet of the entertainment industry. Nintendo not only survived the collapse of the video game console market, they helped resurrect it. In a world where the makers of films and television shows are worried about how the technologies of the future will affect them, Nintendo's story provides more than a glimmer of inspiration.

It is also the story of a battle regarding intellectual property rights, especially salient given my post the other day regarding Cory Doctorow and the Doctorow Doctrine. Nintendo was sued by Universal because of the similarity Donkey Kong's title character had to the famous RKO (now Universal) monster King Kong. Universal wanted their share of Nintendo's, and all their licensees', profits from the game. Many of the licensees, like Coleco and Tiger, caved quickly to the demands. Nintendo, on the other hand, came out of their corner fighting and won. To quote, "John Kirby...stunned the room with a fatal blow to Universal's already weakening case. In 1975, Universal Studios had successfully taken RKO Pictures to court in order to prove the image and story of King Kong were over 40 years old and therefore in the public domain, clearing the path for Dino De Laurentiis to remake the movie in 1976 without paying any expensive royalties."

Copyright law has changed since then (lifetime plus how many years?), but one thing remains the same. Corporations still claim copyright for individual creator's works. You see, this is what I find most important about copyright. I don't care if a corporation is able to profit for lifetime-plus-seventy years on a product, but I do care that the individual responsible is able to profit. Cory Doctorow can advance his Walter Benjamin inspired defetishization of the artifact agenda all he wants, but I believe the act of creation instills certain rights, rights that shouldn't be hijacked by p2p servers or large corporations. Corporations, while necessarily being treated as individuals before the law in some ways (you do have to sue somebody after all), are not de facto people. Corporations should protect individual copyrights, and yes profit from them, but they shouldn't be giant leeches profiting off of the rights of dead men and women.

And this is where we can learn another lesson from the Universal City Studios, Inc. vs Nintendo Co., Ltd. case. When the case was over, the judge in the case (Judge Robert Sweet) determined that Nintendo could claim damages from Tiger Electronics. Tiger had been forced by Universal to change their Donkey Kong hand held game into a King Kong hand held game -- with some minor content alterations -- and pay royalties to Universal. Judge Sweet "determined the alterations were not sufficient to differentiate it from Nintendo's game," giving Nintendo the authority to take money from Tiger. Nintendo "instead decided to let Tiger off the hook and reclaim the profits Universal had made from the original King Kong license." So not only did Nintendo not pursue damages, they helped Tiger recoup royalties that never should have been paid in the first place. If only more copyright fights resolved themselves like this.

Most importantly, without Donkey Kong I probably wouldn't be going home to futz with my Wii tonight.

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