Norman Caruso (Gaming Historian) announced his retirement recently, and as a parting gift he uploaded the files from the Universal v. Nintendo case over Donkey Kong. This had been in the works for many years but now we can finally look at this seminal lawsuit that helped define Nintendo’s future!
While many have been digging into the files after the launch, I was originally working with Norm on a summary of the whole case for his next video. The case is often misreported and slightly misunderstood, so this is a summary of the events as they happened: According to the original files (which I have reuploaded and organized on my Archive page as individual files). Though many files from the original case were destroyed as part of regular court cleaning procedures, we still have a relatively complete view of the narrative of the lawsuit and all its drama!
Universal v. Nintendo

We’ll start after the release of Donkey Kong, first shipped to coin-op game distributors in July or August 1981. The game quickly became incredibly popular in both the United States and Japan – a vital part of the video game boom that flourished in 1982. But even being part of this growing industry, the game would not have been part of anything dramatic had it not been for a routine check done by a lawyer.
MCA/Universal (hereafter, Universal), the major motion picture studio, had been involved in a dispute around the rights to the classic 1933 film King Kong a few years earlier. RKO Pictures – the original distributor of the film – had all but collapsed as a film studio but there was ample interest in the King Kong intellectual property. Universal sought those rights, but RKO granted them to Dino De Laurentiis Corp to create a remake with Paramount Pictures instead. In the subsequent court case, Universal assumed several rights to King Kong from the estate of the original creator and in December 1980 started exploring those license rights more affirmatively.
When Donkey Kong first released, it garnered no notice from Universal. Video games may have been big, but not yet a threat to movie studio cultural dominance. However, with the increasing need for companies to stand out in the market, the potential of attaching a license video games was being explored – which was the spark that brought the two gorillas into conflict.

In August 1981, Universal’s legal department received a letter from Randy Rissman, co-founder of Tiger Electronic Toys. Tiger (later Tiger Electronics) was an Illinois-based company primarily creating handheld electronic games and they were seeking a license for King Kong. As it turned out, Rissman had been early to see Donkey Kong when he was visiting Japan. Predicting its success, he arranged for Tiger to create clones of the game: Both an electronic handheld game as well as an Atari VCS game cartridge.
Universal were a little befuddled at this sudden question about King Kong rights – which had little perceived value. The only current project with the IP was a proposed section of the Universal Studios Tour. With the remake by Paramount some years in the past, there was little reason to license the property. Nevertheless, on September 18, 1981 Universal signed a fairly generous licensing agreement with Tiger for electronic and cartridge games.
In late September 1981, Universal conducted a routine trademark search for King Kong to see if there were any conflicting businesses using the name. While there were a few take-offs on the wording of the name, they did not turn up Donkey Kong, which had been filed in July that year. In December, anticipating the need to establish trademark protection for the Tiger game, Universal licensing expert Loretta Sifuentes procured a Parker Brothers electronic game from the Universal Studios Tour that could be temporarily rebranded with the “King Kong” name for purposes of trademark filing. However, when the lawyers did their search this time in January 1982, they turned up a conflict: Donkey Kong.
Immediately suspecting something, Sifuentes and fellow licensing department employee Steven Adler went to check out Donkey Kong in a nearby arcade. They put two and two together: Tiger was clearly intending to copy Donkey Kong for their King Kong game. Sifuentes later claimed that she alerted Universal’s law department to this forthcoming issue.
A few weeks later in mid-February 1982, Adler and Sifuentes attended the New York Toy Fair to be on the lookout for licensing opportunities. They were approached by a man representing an electronics company who sought permission to create an electronic wrist watch game (a rising category at the time) with the King Kong license. As part of their inquiry, they asked if Universal would shield them from potential litigation by Nintendo. These worries were compounded as they saw that Tiger Electronics had sent out a catalog at the show which advertised their upcoming King Kong game – doing so without even speaking to Universal for permission to use their trademark.

These tensions simmered in the background while the situation became even more complicated. Just before Toy Fair, Coleco Industries had concluded a licensing arrangement with Nintendo Co. Ltd. to produce adaptations of Donkey Kong in cartridge form as well as their tabletop mini-arcade electronic games – plus a separate agreement for Donkey Kong dolls. The cartridge rights had been bargained hard for and they intended to exploit their victory by making Donkey Kong the pack-in with their Colecovision console, forthcoming that June.
Coleco had also been in discussions with Universal over licensing since Fall of the prior year. Their licensing expert Al Kahn (later head of 4Kids Entertainment) had kicked the tires on the movie studio about licensing properties like Smokey the Bandit and Jaws for adaptation to video games. While these talks didn’t amount to anything specific (aside from Coleco later bidding on the video game rights to E.T.) they did turn Universal’s attention more firmly towards the video game market. Universal had to consider who they might partner with and how best to tackle the new commercial opportunity.

Head of Universal Sid Sheinberg very much wanted King Kong to be part of that future. Sheinberg had been gung-ho on Universal’s rights battle for King Kong and he felt there was something to mine out of the old Hollywood icon. He would commission a script for another King Kong remake later that year in hopes of bolstering the property. With all of these business opportunities colliding, it was inevitable that he’d find out about Donkey Kong.
According to the court records, April 1, 1982 is when the head of Universal was first informed about Donkey Kong. He first read about the game in a publication – though what specific profile was never identified. Knowing nothing of the prior investigations, Sheinberg instructed the company’s outside counsel, Robert Hadl, to look into the game and see if it infringed on King Kong. Sheinberg was informed by Hadl that the game did infringe, on the basis of its general premise and name. Convinced of an easy case with the leverage they possessed as major motion picture studio, Sheinberg planned to spring the trap later in the month.
Arnold Greenberg, head of Coleco, met with Sheinberg, Steve Adler, and Universal chairman Lew Wasserman on April 27 to discuss potential deals – including a substantial 20% investment into Coleco. Sheinberg led the conversation to Coleco’s video game business, which Greenberg was more than happy to talk about. When broaching the topic of Donkey Kong, Sheinberg wasted no time in telling Greenberg that Coleco was infringing on Universal’s rights to King Kong by selling the game. Later in the day, when Greenberg showed off one of their upcoming commercials for the game which directly riffed on King Kong, Sheinberg once again agitated for a settlement.
The next day, Universal sprang into action. They sent telegrams to both Coleco and Nintendo of America – being informed of this situation for the first time – to cease their infringement of King Kong. Coleco, anxious over their potential dealings with Universal and the upcoming launch of the Colecovision, was under extreme pressure. They had to consider very carefully what would be the next move for the company in the long term.

Nintendo, meanwhile, caught a sense that something was suspicious. On May 3, their law firm conducted a trademark search for King Kong on a hunch. In their search, they did not find any evidence of consistent, recent uses of the King Kong trademark; their verdict was that no singular entity had expressed its use in a long time, certainly not Universal. This affirmed to Nintendo of America’s chief legal counsel, Howard Lincoln, that they could not rush into a decision.
Coleco, on the other hand, felt they needed to settle quickly. On May 5, the day before a scheduled legal meeting between the parties, Coleco agreed that they would settle with Universal. As part of this preliminary agreement, they also agreed not to tell Nintendo of their decision to settle, and act as a supposedly neutral arbiter to push Nintendo into agreeing to terms.
The parties met at Universal Studios the next day to parlay. Representing Nintendo of America was president Minoru Arakawa, Lincoln, and Jim McCree from the same law firm. Coleco was represented by counsels Michael Schwefel and Fred Yerman. For Universal, Robert Hadl – who had advised Sheinberg to pursue legal action – was on hand, later joined in the second meeting by Loretta Sifuentes. Coleco’s counsel pushed for Nintendo to capitulate to Universal’s terms, but Lincoln advised Arakawa to stand firm. They didn’t believe that Donkey Kong constituted infringement or that it was an open and shut case.
Critically, Lincoln asked for something simple from Universal: A chain of title. They wanted proof that Universal truly owned the rights to King Kong before they would consider any sort of disadvantageous agreement. For a company like Universal and its large legal department, this should have been a simple thing to provide. However, in the days after the meeting, Nintendo received no such evidence of ownership. Their suspicions were thoroughly raised.
Nintendo of America informed their parent company of the forthcoming legal action while Coleco formalized a settlement with Universal. They handed over 3% of all of their royalties from all of their Donkey Kong products. If they convinced Nintendo to settle with Universal though, they would get 2% of all royalties received by Universal from Nintendo. Coleco was safe from potentially crippling litigation at the eve of their new major product launch with the Colecovision.
However, this new agreement presented a difficulty: Tiger Electronic Toys. The licensing agreement signed at the beginning of all of this had granted them exclusive rights to King Kong electronic and video games, which was what Coleco’s agreement now constituted. Knowing that Coleco was going to net them a much bigger dividend, Sifuentes was directed by Universal to nullify the existing contract by any means necessary. As it turned out, Tiger had been rather neglectful in providing any materials for their upcoming games directly to Universal – which gave them an immediate excuse for agitation.
On May 4, Sifuentes wrote an angry letter to Tiger over their neglectful hand in the partnership and demanded that the forthcoming games be furnished to Universal within the next few days. Rissman replied the next day, sending over all of their materials for their King Kong games: The VCS cartridge which was nearing production, a tabletop LCD electronic game, and a handheld version of the game which also had an in-built clock function (like Nintendo’s Game & Watch series). While the latter two were non-functioning mock-ups that only displayed the gameplay, Tiger hoped those would be sufficient to allay any doubts.
Sifuentes raised immediate objections that the games had been advertised without Universal’s approval at the Toy Fair, at the Winter Consumer Electronics Show, and were planned to be shown at the coming Summer CES. She also said that a game-with-a-watch had not been agreed to in the language of the contract. Then, most importantly, she claimed that because Tiger was clearly copying Donkey Kong, that was a potential infringement on another company’s IP and they could not abide it. Sifunetes declared the contract null and void. On top of that, Coleco sent Tiger a letter over objections to the King Kong tabletop game as being overly similar to the Donkey Kong mini-arcade they were about to release.
Tiger, however, did not wilt at this challenge. They did their own examination and concluded that Universal had never properly transferred rights to them to create an authorized King Kong game – nor did they seem to own the trademark for King Kong more generally. Additionally, they claimed that Universal attempted to use a clause in the contract to assume control of Tiger’s patented technology, which they said was a violation of antitrust law. They requested clarification on Universal’s objections such that they might save their forthcoming games from the fate of having no attached license.
Universal attempted to keep their fingers in their ears, considering the contract legally dead, but they likely suspected Tiger could cause issues if they continued to deny the license. Tiger was offered an amendment to the original contract – so long as they added a few elements to differentiate their games from Donkey Kong. The VCS game previously contained slanted platforms which would now be perfectly straight. The barrels as obstacles were changed to bombs. The LCD games already had the conceit of a fireman as the protagonist, but Tiger were instructed to add a hat to the character to make that clear.

The contract signed a few months later had new stipulations. Most importantly, it was non-exclusive and had been approved by Coleco – who Universal saw as the more important partner. The original royalty expected by Universal would be halved for the first year as a concession for the turmoil they’d gone through. Tiger also received protection against Nintendo by Universal, as well as an agreement by Coleco for them to not take legal action – despite the overlap in product categories.
Ultimately, the rigmarole may not have been worth the hassle. By the end of 1982, Tiger had sold 55,215 of the VCS cartridge, 9,299 of their tabletop games, 15,264 of the LCD games with a clock, and 673 of the standard LCD games which netted Universal a few thousand dollars in royalties. As a small company that may have been decent, but it paled in comparison to Coleco shipping almost 6 million Donkey Kong cartridges by April of the following year with royalties exceeding $2 million. Universal obviously made the better choice for their business.
Nintendo had to make their own resolution. On May 21, 1982, Sheinberg and Hadl met with Arakawa and Lincoln with hopes that settlement was on the table. Both partners were hopeful that they could work together on future projects, as Nintendo already was with the licensing of Popeye from King Features. However, Lincoln asserted that the claims of Universal had no merit. Having gone through the evidence, he doubted Universal’s claim to King Kong and had no intention of diminishing the success of their breakthrough product by admitting an infringement.
Sheinberg was incensed. His anger came out with threats and hard-talk: A true movie mogul’s personality. He claimed that he would do to Nintendo what they had done to Sony in the famous Betamax case – leveraging their power as a major film studio and as a center of strong litigation. In his retort, Sheinberg boasted that “[Universal’s] litigation department even turned a profit” (this was rendered in the book Game Over as Sheinberg viewing “litigation as a profit center” – but the testimony of both Lincoln and Hadl say otherwise). A former lawyer himself, Sheinberg knew the power of legal threats. They gave Nintendo until the upcoming Summer Consumer Electronics Show to settle or else the suit was forthcoming.

Arakawa was understandably unsure about holding his ground, but Lincoln reassured him that they could win this fight. Both sides readied for battle, with Nintendo selecting the firm to represent them in court – as Lincoln was not a trial lawyer. They selected the Seattle firm Mudge Rose Guthrie & Alexander + Sax and MacIver who assigned the tenacious John Kirby to this complicated rights dispute. Kirby, a former civil rights lawyer who’d turned to corporate cases, was fierce on the stand and would leave no stone unturned.
On June 29, 1982, Universal filed suit against Nintendo Co. Ltd. and Nintendo of America in the Southern District of New York state, asking for a preliminary injunction over Nintendo’s alleged violation of the story of King Kong as well as its trademark. Coleco issued a press statement in support of Universal, having failed to push Nintendo towards capitulation. Many headlines about “ten ton gorillas” followed.
Kirby took his time in examining the facts before any evidence was collected. He and his team were digging into Lincoln’s suspicions about Universal’s ownership of the King Kong rights while also asserting that the claim against Donkey Kong was bogus. Nintendo’s first countermeasure claimed they had suffered at the hands of Universal’s dealings with Coleco and Tiger. Before long, this started to affect their bottom line.
Nintendo had courted offers of licensing beyond the agreements they signed with Coleco since April 1982. The first wave of Donkey Kong merchandise sat alongside that of Pac-Man in this period of the arcade boom, with the characters adorning shirts, lunchboxes, cereal, board games, and even getting a dedicated slot on the Saturday Supercade cartoon show. By early 1983, Nintendo of America had signed 40 licensees to their Donkey Kong product – the beginning of an empire that is among the most lucrative licensing enterprises on the planet today.
Universal, seeing these exploitations of the property as further infringement, started going after these third-party licensees in January 1983 with legal threats. Many of these companies were unwilling to fully stand with Nintendo. The likes of Atari (creating the computer versions of Donkey Kong) and Ruby-Spears (producing Saturday Supercade) caved into the royalty demands. Other companies either demanded Nintendo to return their royalty advances, held their royalties in escrow pending the judgment of the case, or canceled their agreements with Nintendo to get Universal off their back.
Nintendo was also moving into damage control to prevent any further confusion regarding Donkey Kong and King Kong. Anytime a magazine or newspaper drew a comparison between the two properties, Nintendo of America’s PR head Susan Schoenecker would send them a letter to clarify the difference and request a printed retraction. The lawsuit was going to be long and complex, and Donkey Kong wasn’t going anywhere anytime soon – they didn’t want to stoke the fire of Universal’s claim of trademark infringement.
On May 10, 1983, Nintendo’s law firm finally submitted their argument: And it was a big one. They had determined in their research that Universal had no right to express ownership of King Kong. Universal had previously argued in court that not only was the King Kong trademark uncertain, but the actual status of the original work was in public domain. They could not assert a right to something which they did not legally possess.
So what was this about?

In intellectual property law, any singular work can have many different parts of law which govern its application. When we are talking about “King Kong“, we are talking about several different things that overlap. There is the 1933 RKO Pictures release King Kong, which most film buffs are familiar with. There is the character within the film, King Kong, which has specific attributes but different expressions of appearance and personality depending on the setting. Then there is King Kong, the story concept dreamed up by Merian C. Cooper.
Cooper came to RKO Pictures in the 1930s with the idea for King Kong in hand to be made into a movie. He had developed the idea some years earlier and pitched it to RKO for development. For the film, he served as co-director, a producer, and received a story credit. With the film in development, he also commissioned a friend of his to create a novelization based on the screenplay – a common Hollywood practice even today. The novel was bundled as a paperback book and then abridged in two issues of the sci-fi pulp publication Mystery Magazine, both prior to the film’s release.

In the following years, Cooper had many rights disputes with RKO over the King Kong character – which he asserted ownership of as an independent contractor and not as a work wholly owned by RKO. These particulars are not overly relevant to our story, up until the point that Universal enters the picture. As previously mentioned, in 1975 Universal sued Paramount over their forthcoming remake of King Kong with Dino de Laurentiis Corp. Universal asserted that a verbal agreement with RKO to make the remake had been broken and therefore sought to challenge the right of Laurentiis to claim exclusive rights to a remake. Roped into this was Merian’s son, Richard Cooper, who still fought for his father’s rights to the property as part of his estate.
Universal’s assertion was that RKO did not have the right to declare exclusive ownership over King Kong. The novelization had never had its copyright renewed – a familiar story to anyone who knows the tale behind the publications of H. P. Lovecraft and other pulp writers. As this was the earliest work formally published, that meant that the King Kong story as presented in the novelization was in the public domain.
Paramount argued that since the novel was based on the screenplay, the movie was the original work. The difference in copyright terms would be that the shared elements of the film and the novel would either be part of or excluded from the public domain, with the unique elements between them given the opposite fate. If Universal won, that meant the character of King Kong, the premise of King Kong, plus any other particulars shared between the film and the book were free for anybody to use. If Paramount won, only the things in the written work which were distinct from the film were in the public domain.
In the verdict on the case, the judge sided with Universal: The only rights RKO possessed regarding King Kong were the elements specific to the original film, plus its sequel Son of Kong. Everything else as presented in the novel was fair game. However, in a follow-up verdict, the judge also declared that Merian Cooper’s estate possessed unique rights to the character of King Kong, as well as the story and the name – what’s come to be known as the “Cooper Judgment”. These carved-out rights, primarily regarding merchandising, were then sold by Richard Cooper to Universal – save for the right of his company to create King Kong-based Halloween costumes for four years afterwards. Universal profited nicely from the case by taking a percentage of income from the 1976 remake and reserved the right to create a King Kong remake of their own sometime in the future.
This state of affairs is a bit confusing. While the Cooper estate had always claimed publication rights to the character of King Kong, how did ownership of the character and story square with the fact that all the critical elements of the narrative were in the public domain? One thing was very clear in this transfer though: Universal possessed no rights to the trademark “King Kong”. Whatever else they owned, they could not assert sole ownership of King Kong as a name for goods, just as they had argued the same against RKO. The argument that Donkey Kong violated their trademarks carried no weight.
Universal thought they had covered their bases, as they had attained legal permission from RKO to assume rights from the original film solely for the purposes of this case. In all other ways, they had tread carefully around those rights in their further exploitation of the brand: Both the teams creating the King Kong-themed Universal Studios Tour addon and the people working on the proposed new remake were specifically instructed to avoid referencing the RKO film or the remake. But in asserting a sole right of ownership to the King Kong property, they had overplayed their hand.
Even with this revelation, Universal attempted to bolster the claim that Donkey Kong‘s success was ultimately derived from its association with King Kong. An independent market research group called coin-op machine operators and asked them questions about the game, as well as the name. Out of the 150 people surveyed, only 21% actually considered that the Donkey Kong name was derived from King Kong – hardly a strong result in favor of Universal.
At the end of 1983, Judge D. J. Sweet made his ruling. He found that Universal had presented no evidence that they owned the King Kong trademark, and that said trademark had no “singular meaning” – essentially concluding it had been diluted beyond sole ownership, much like the brand Kleenex. As such, their brandishing of the trademark was a wonton violation of trademark law and Universal had no standing in the case.
The world was a bit stunned when small Nintendo – who’d not ever since had a hit the size of Donkey Kong stateside – were declared winners on January 4, 1984. Universal, aghast at this judgment, immediately filed for appeal. Unusually, they also had the original case reopened, adding more to the record as they challenged the conduct of the trial for a separate judgment.
The most significant addition to the reopened case was the deposition of Loretta Sifuentes – who had moved from Universal to Coleco. Having been there to observe the earliest conflict of the video game rights, her testimony added much clarity to the reasoning behind Universal’s actions regarding the King Kong IP. When questioned by John Kirby, Sifuentes provided a major revelation about Universal’s knowledge of their rights – or lack thereof.
After the 1982 New York Toy Fair, Sifuentes said she’d spoken with Universal’s legal department about the conflict vis a vis Tiger’s King Kong game and Donkey Kong. Universal legal counsel Joseph Di Muro then confided in her that he’d previously determined that Universal had no actual rights to King Kong and suggested that they cancel any contract with Tiger. As supporting evidence, Sifuentes claimed that Universal’s licensing catalog – which showcased all the intellectual properties that were available for use by third parties – dropped King Kong not long after this conversation.
When Di Muro was called for a deposition, he categorically denied that this conversation had taken place. Universal’s also attempted to cast shade on Sifuentes as an unreliable witness, claiming she had not done her due diligence to inform those within Universal of the negotiations regarding King Kong, including the Tiger deal which had not been worth their while. However, as the person most intimately involved in the negotiations over the video game rights and having many supporting documents to that fact, Sifuentes appears to have mostly told the truth regarding this manic cluster of priorities at Universal.
Supporting this fact was Sid Sheinberg’s own deposition. Despite having a direct, personal interest in King Kong, he avoided the subject of what rights to the property he believed the company owned with a lawyerly agility. John Kirby spared no mercy in his questioning of the executive, but Sheinberg’s obstinance seemed to prove the point: Universal could not clearly state its rights to King Kong. Their inability to provide a chain of title back from the first meeting with Nintendo of America was borne out.
At the end of 1984, the appeals court found that the original summary judgment had been correct. Universal’s flagrant abuse of the legal system to control the rights to King Kong which they knew they did not legally possess was unacceptable. Additionally, using that false claim to bully Nintendo of America’s third-party licensees was unlawful – opening the door for those companies to sue for damages. Nintendo itself was awarded $1.6 million in damages at the end of the following year – right at the time they were launching the Nintendo Entertainment System in North America.
With only one legal recourse, Universal attempted to appeal to the 2nd Circuit Court of Appeals to rule on the conduct of the trial. However, the claims stood, and on July 15, 1986 over four years of legal turmoil came to an end when the 2nd Circuit judges affirmed the lower court judgment. Nintendo was no longer a middling arcade game company – they were a force to be reckoned with in the new entertainment landscape.
Legacy

In recent times, copyright automation systems have been flagrantly abused to assert rights that the claimants may not possess. Universal v. Nintendo proves that even the most powerful business entities are not immune to abusing the copyright system, and how vital a chain of title is for legal recourse.
It is also an unfortunate truth that after Nintendo had firmly established that Universal had no rights to the King Kong trademark, they still had to go through several months of legal proceedings for the case to be rendered – then several more years as Universal fought back on a bogus claim. Individual creators asserting their rights simply do not have the wherewithal to hold out for so long.
This story also highlights the complicated status of the public domain. While the particular status of King Kong has been used to create original works without the need for approvals, the difficulty of avoiding copyright pitfalls remains a sticky issue. Whether it’s Popeye with no spinach or Winnie the Pooh with no shirt, these issues are hard to reconcile with the idea of a character being truly free to use. The original King Kong film will be entering the public domain in 2029, which will undoubtedly bring with it much renewed interest in the character that created the kaiju genre.
Of course, we can’t deny the great irony that Universal Pictures and Nintendo have had several collaborations since then: Such as The Wizard film in 1989 (which features the King Kong Encounter) and being the company that produces the Mario animated films. Neither company is quite the same as it was – in Universal’s case having gone through many ownership changes – but it’s an amusing capstone to the story that it would be under the Universal banner that Donkey Kong received his most successful on-screen appearance.
As it comes to video games, this trial also has its legacy. While the specific aspects of law at play didn’t have much to do with electronic entertainment, the judgment was a huge moment for the legitimacy of video games vis a vis film in the sense of corporate power.
One of the often missed legacies was how this trial factored into Nintendo’s business dealings. Nintendo of America saw the capitulation of both Coleco and Atari as black marks on their relationship. Both companies had to pay a higher royalty for their rights to Donkey Kong Jr., which is attributed in the trial to be due to their capitulation to Universal – also resulting in Nintendo suing Atari for the unpaid royalties. According to Howard Lincoln, after that license Coleco was essentially barred from receiving any further licenses from Nintendo.
These bad feelings also seem to have played a role in Nintendo’s decision to go it alone in the U.S. market. In the book Game Over, it’s reported that Nintendo president Hiroshi Yamauchi had an animated confrontation with Arnold Greenberg of Coleco over a dispute related to Atari’s computer rights to Donkey Kong. However, according to Lincoln’s testimony, this confrontation largely had to do with Yamauchi’s displeasure over their stance in the lawsuit. Coleco did later sue Universal for damages related to the case, but no further dealings were ever made with Nintendo. What this reframing of events means for the scuttled Atari deal for the Famicom is still an open question.

Of course, for Nintendo, this was their establishment as a legal force to be reckoned with. Having never been a particularly litigious company in Japan, Nintendo of America would be reinforced by its legal authority. Over the course of the suit, Howard Lincoln moved from a legal consultant to vice president of Nintendo of America as Minoru Arakawa’s right hand man. His legal acumen helped the company navigate the complicated waters of enormous success – as often in defense as on the attack – which reshaped the landscape of video games in the United States.
Then there’s John Kirby. He continued to serve as Nintendo’s chief trial attorney in their subsequent legal battles: Defending themselves against Atari Games, Atari Corp, Magnavox, and the U.S. Federal Trade Commission as well as suing the likes of Lewis-Galoob and others. As a result of this case, Kirby was given an exclusive right to the name “Donkey Kong” for sailboats, and was later immortalized as the inspiration for the name of the character Kirby.
Though we can squeeze much out of the remaining case files, the original trial no longer exists. In the process of legal clean-up in the past few decades, many original court records have been destroyed. Accessibility remains an issue for many court records, usually requiring physical proximity to a National Archives office and sometimes with the requirement of purchasing printed copies rather than being able to photograph originals. In some cases – like Atari Corp v. Nintendo – companies have even been able to seal off access to these records.
Many of these cases provide incredibly valuable bastions of information for historical purposes. I’ve previously written on how the Magnavox court files fundamentally reshape the Ralph Baer-centric narrative of the Odyssey. The Video Game History Foundation recently put together a video about new revelations around the launch of the NES, partially drawn from legal papers. Dungeons & Dragons researchers were recently blessed with access to an original draft of the game preserved in court records. These dusty legal papers have preserved many facts, contemporaneous opinions, and stories that enrich our understanding of this history – despite their often dry presentation. Should you be one who wants to find out even more about the case, check all the files out on the Internet Archive.
If you want to help in these efforts of preserving legal documents, read this article I wrote on the subject – and of course join us at Gaming Alexandria! Thanks so much to Norm for taking the time over 6 years ago(!) to scan these materials while they still exist. We hope this story is as exciting to you as it is to us!




















(@ChrisMurphyCT) 


