King Kong - Character Rights

Character Rights

While one of the most famous movie icons in history, King Kong's intellectual property status has been questioned since his creation, featuring in numerous allegations and court battles. The rights to the character have always been split up with no single exclusive rights holder. Different parties have also contested that various aspects are public domain material and therefore ineligible for trademark or copyright status.

When Merian C. Cooper created King Kong, he assumed that he owned the character, which he had conceived in 1929, outright. Cooper maintained that he had only licensed the character to RKO for the initial film and sequel but had otherwise owned his own creation. In 1935, Cooper began to feel something was amiss when he was trying to get a Tarzan vs King Kong project off the ground for Pioneer Pictures (where he had assumed management of the company). After David O. Selznick suggested the project to Cooper, the flurry of legal activity over using the Kong character that followed—Pioneer having become a completely independent company by this time and access to properties that RKO felt were theirs was no longer automatic—gave Cooper pause as he came to realize that he might not have full control over the figment of his own imagination.

Years later in 1962, Cooper had found out that RKO was licensing the character through John Beck to Toho studios in Japan for a film project called King Kong vs Godzilla. Cooper had assumed his rights were unassailable and was bitterly opposed to the project. In 1963 he filed a lawsuit to enjoin distribution of the movie against John Beck as well as Toho and Universal (the films U.S. copyright holder). Cooper discovered that RKO had also profited from licensed products featuring the King Kong character such as model kits produced by Aurora Plastics Corporation. Cooper's executive assistant, Charles B FitzSimons, stated that these companies should be negotiating through him and Cooper for such licensed products and not RKO. In a letter Cooper wrote to Robert Bendick he stated:

"My hassle is about King Kong. I created the character long before I came to RKO and have always believed I retained subsequent picture rights and other rights. I sold to RKO the right to make the one original picture King Kong and also, later, Son of Kong, but that was all."

Cooper and his legal team offered up various documents to bolster the case that Cooper had owned King Kong and only licensed the character to RKO for two films, rather than selling him outright. Many people vouched for Cooper's claims including David O. Selznick (who had written a letter to Mr. A Loewenthal of the Famous Artists Syndicate in Chicago in 1932 stating (in regards to Kong), "The rights of this are owned by Mr. Merian C. Cooper." But unfortunately Cooper had lost key documents through the years (he discovered these papers missing after he returned from his WW2 military service) such as a key informal yet binding letter from Mr. Ayelsworth (then president of the RKO Studio Corp) and a formal binding letter from Mr. B. B. Kahane (the current president of RKO studio Corp) confirming that Cooper had only licensed the rights to the character for the two RKO pictures and nothing more.

Unfortunately without these letters it seemed Cooper's rights were relegated to the Lovelace novelization that he had copyrighted (He was able to make a deal for a Bantam Books paperback reprint and a Gold Key comic adaptation of the novel, but that was all he could do). Cooper's lawyer had received a letter from John Beck's lawyer, Gordon E Youngman, that stated:

"For the sake of the record, I wish to state that I am not in negotiation with you or Mr. Cooper or anyone else to define Mr. Cooper's rights in respect of King Kong. His rights are well defined, and they are non-existent, except for certain limited publication rights."

In a letter addressed to Douglas Burden, Cooper lamented:

"It seems my hassle over King Kong is destined to be a protracted one. They'd make me sorry I ever invented the beast, if I weren't so fond of him! Makes me feel like Macbeth: 'Bloody instructions which being taught return to plague the inventor'."

The rights over the character didn't flare up again until 1975, when Universal Studios and Dino De Laurentiis were fighting over who would be able to do a King Kong remake for release the following year. De Laurentiis came up with $200,000 to buy the remake rights from RKO. When Universal got wind of this, they filed a lawsuit against RKO claiming that they had a verbal agreement from them in regards to the remake. During the legal battles that followed, which eventually included RKO countersuing Universal, as well as De Laurentiis filing a lawsuit claiming interference, Colonel Richard Cooper (Merian's son and now head of the Cooper estate) jumped into the fray.

During the battles, Universal discovered that the copyright of the Lovelace novelization had expired without renewal, thus making the King Kong story a public domain one. Universal argued that they should be able to make a movie based on the novel without infringing on anyone's copyright because the characters in the story were in the public domain within the context of the public domain story. Richard Cooper then filed a cross-claim against RKO claiming while the publishing rights to the novel had not been renewed, his estate still had control over the plot/story of King Kong.

In a four-day bench trial in Los Angeles, Judge Manuel Real made the final decision and gave his verdict on November 24, 1976, affirming that the King Kong novelization and serialization were indeed in the public domain, and Universal could make its movie as long as it didn't infringe on original elements in the 1933 RKO film, which had not passed into public domain. (Universal postponed their plans to film a King Kong movie, called The Legend of King Kong, for at least 18 months, after cutting a deal with Dino De Laurentiis that included a percentage of box office profits from his remake.)

However, on December 6, 1976, Judge Real made a subsequent ruling, which held that all the rights in the name, character, and story of King Kong (outside of the original film and its sequel) belonged to Merian C Cooper's estate. This ruling, which became known as the "Cooper Judgment", expressly stated that it wouldn't change the previous ruling that publishing rights of the novel and serialization were in the public domain. It was a huge victory that affirmed the position Merian C. Cooper had maintained for years. Shortly thereafter, Richard Cooper sold all his rights (excluding worldwide book and periodical publishing rights) to Universal in December 1976. In 1980 Judge Real dismissed the claims that were brought forth by RKO and Universal four years earlier and reinstated the Cooper judgement.

In 1982 Universal filed a lawsuit against Nintendo, which had created an impish ape character called Donkey Kong in 1981 and was reaping huge profits over the video game machines. Universal claimed that Nintendo was infringing on its copyright because Donkey Kong was a blatant rip-off of King Kong. During the court battle and subsequent appeal, the courts ruled that Universal did not have exclusive trademark rights to the King Kong character. The courts ruled that trademark was not among the rights Cooper had sold to Universal, indicating that "Cooper plainly did not obtain any trademark rights in his judgment against RKO, since the California district court specifically found that King Kong had no secondary meaning." While they had a majority of the rights, they didn't outright own the King Kong name and character. The courts ruling noted that the name, title, and character of Kong no longer signified a single source of origin. The courts also pointed out that Kong rights were held by three parties:

• RKO owned the rights to the original film and its sequel.
• The Dino De Laurentiis company (DDL) owned the rights to the 1976 remake.
• Richard Cooper owned worldwide book and periodical publishing rights.

The judge then ruled that:

"Universal thus owns only those rights in the King Kong name and character that RKO, Cooper, or DDL do not own."

The court of appeals would also note:

"First, Universal knew that it did not have trademark rights to King Kong, yet it proceeded to broadly assert such rights anyway. This amounted to a wanton and reckless disregard of Nintendo's rights. Second, Universal did not stop after it asserted its rights to Nintendo. It embarked on a deliberate, systematic campaign to coerce all of Nintendo's third party licensees to either stop marketing Donkey Kong products or pay Universal royalties. Finally, Universal's conduct amounted to an abuse of judicial process, and in that sense caused a longer harm to the public as a whole. Depending on the commercial results, Universal alternatively argued to the courts, first, that King Kong was a part of the public domain, and then second, that King Kong was not part of the public domain, and that Universal possessed exclusive trademark rights in it. Universal's assertions in court were based not on any good faith belief in their truth, but on the mistaken belief that it could use the courts to turn a profit."

Because Universal misrepresented their degree of ownership of King Kong (claiming they had exclusive trademark rights when they knew they didn't) and tried to have it both ways in court regarding the "public domain" claims, the courts ruled that Universal acted in bad faith (see Universal City Studios, Inc. v. Nintendo Co., Ltd.). They were ordered to pay fines and all of Nintendo's legal bills from the lawsuit. That, along with the fact that the courts ruled that there was simply no likelihood of people confusing Donkey Kong with King Kong, caused Universal to lose the case and the subsequent appeal.

Since the court case, Universal still retains the majority of the character rights. In 1986 they opened a King Kong ride called King Kong Encounter at their Universal Studios Tour theme park in Hollywood (which was destroyed in 2008 by a backlot fire), and followed it up with the Kongfrontation ride at their Orlando park in 1990 (which was closed down in 2002 due to maintenance issues). They also finally made a King Kong film of their own, King Kong (2005). In the summer of 2010, Universal opened a new 3D King Kong ride called King Kong: 360 3-D at their Hollywood park replacing the destroyed King Kong Encounter. In 2012, Universal will open another King Kong ride, a King Kong-themed dueling roller coaster at Universal Studios Dubailand.

The Cooper estate retains publishing rights for the content they claim. In 1990 they licensed a six-issue comic book adaptation of the story to Monster Comics, and commissioned an illustrated novel in 1994 called Anthony Browne's King Kong. In 2004 and 2005, they commissioned a new novelization to be written by Joe Devito called Merian C Cooper's King Kong to replace the original Lovelace novelization (the original novelization's publishing rights are still in the public domain) and Kong: King of Skull Island, a prequel/sequel novel that ties into the original story. They are working on an upcoming musical stage play due out in 2013 called King Kong Live on Stage with Global Creatures, the company behind the Walking with Dinosaurs arena show.

RKO (whose rights consisted of only the original film and its sequel) had its film library acquired by Ted Turner in 1986 via his company Turner Entertainment. Turner merged his company into Time Warner in 1995, which is how they own the rights to those two films today.

DDL (whose rights were limited to only their 1976 remake) did a sequel in 1986 called King Kong Lives (but they still needed Universal's permission to do so). Today most of DDL's film library is owned by Studio Canal, which includes the rights to those two films. The domestic (North American) rights to King Kong though, still remain with the film's original distributor Paramount Pictures, with Trifecta Entertainment & Media handling television rights to the film via their licence with Paramount.