Let me ask you something:
Do you know what the following has to do with one another?
I'm not ashamed to admit that I am quite the fan of video games. I grew up with Mario and his compatriots, and I have always remained entranced by the creations of Shigeru Miyamoto. To me, as well as to a multitude of others, the man is a living legend. 20 years after receiving my NES, I still remain an avid (albeit more part-time, and casual) gamer. Not only are video games still a passionate hobby (whenever I pick up a controller, I become a child again), but it has also, to an extent, influenced other aspects of my life, including my career. How so? Well, these days I am a legal academic, specialising in, among other things, information technology law. One particular subset of my research is, naturally, video game law.
You would probably ask yourself at this point in time: Seriously??? Video game law?, and I would then be glad to inform you that not only are there serious issues which pertain to video games. Very pertinent current legal issues include questions surrounding DRM, licencing, piracy, online privacy, and ownership of digital property, to mention a few. Often cases surrounding video games will also produce a couple of bizarre outcomes (in South Africa, a video game is legally recognised not as a piece of software, but rather a film, for example). Naturally, several interesting anecdotes also occur from time to time...
One such anecdote dates back to the early days of video gaming, and refers to an incident which changed the face of gaming as we know it, namely the release of Donkey Kong. For those who didn't know, the inclusion of both Mario, arguably the most influential gaming character of all time, as well as Donkey Kong himself was completely serendipitous. Initially Donkey Kong was designed to be a showcase arcade game for the Popeye character and franchise, but owing to a licencing dispute between Nintendo and King Features (the owners of the Popeye copyright at the time), the Popeye characters had to be replaced. And thus it came to be that Popeye himself was replaced with Mario, whereas Bluto became Donkey Kong. This however was not the only reason why Donkey Kong is legally significant...
After the massive success of the Donkey Kong arcade game, Nintendo was sued by Universal Pictures, claiming that both the name and the likeness of the Donkey Kong character infringed upon King Kong, which was supposedly Universal's intellectual property. After a lengthy battle, and thanks to some brilliant argumentation and research by Howard Lincoln (Nintendo's then attorney, who would later become CEO of Nintendo of America), the court confirmed that King Kong was in fact in the public domain (further strengthening the legal notion that one cannot assert copyright over something which is or has become commonplace), dismissing all claims against Nintendo. The rest, as they say, is history...
