Who Legally Owns King Kong
Different individuals and different corporate bodies claim ownership of different elements of King Kong. It is as if his body, lying at the base of that great Art Deco marvel, was carved up and sold by the pound. This is a short primer on the King Kong legal nightmare.
In 1933, the defining image of Depression-era mass media was unleashed. An enormous ape, a refuge from the primordial Skull Island, clings to the Empire State Building’s spire. In the ape’s hand, Fay Wray (the terrified symbol of virginal white american purity) screams as bi-planes fire bullets into her simian suitor. It’s an image that has transcended film and even all of pop culture. It has become part of our American symbology.This scene from 1933’s King Kong is now something akin to Washington Crossing the Delaware or the myth of the First Thanksgiving.
The Empire State Building’s gift shop still sells miniatures of King Kong’s final moments. At the end of March, Warner Brothers and Legendary Pictures are releasing the latest blockbuster IP slugfest, Godzilla vs. Kong. For a character who seems to have evolved beyond Hollywood and entered the public consciousness, Kong (like his Depression-Era brethren Superman and Mickey Mouse) is still at the whim of corporate masters. Even though he is a bonafide American myth, the shackles of copyright law still contain him.
For many beloved icons, corporate ownership is easy to determine. Superman, Batman, Wonder Woman, and the rest of the DC Comics menagerie are owned by AT&T and its entertainment subsidiary Warner Brothers. Mickey Mouse, Minnie, Donald, and their chums are approaching their centennial as property of the Walt Disney corporation. For Kong, the story is much more complicated. Different individuals and different corporate bodies claim ownership of different elements of the Great Ape. It is as if his body, lying at the base of that great Art Deco marvel, was carved up and sold by the pound.
The Legal Battles of Merian C. Cooper
Most historians agree that if Kong has a father, it is filmmaker and adventurer Merian C. Cooper. According to letters from Cooper, the inspiration for Skull Island and its monstrous inhabitants came from a friend’s report of encounters with Komodo dragons in Indonesia. Cooper’s bombastic imagination conjured images of baboons and great apes battling the seven foot long lizards.
Cooper always maintained that his creation of Kong predated any deal with RKO and the production of the 1933 film. This theory of Cooper’s was the guiding principle behind a series of legal complaints made by Cooper during the “Monster Boom” of the 1960s. Cooper discovered that RKO had licensed the character both for a series of consumer products and to Producer John Beck for a deal with Toho studios and Universal to make the 1962 classic King Kong Vs. Godzilla.
Cooper sought to stop the Toho-Universal co-production of King Kong vs. Godzilla from being released. He claimed to have a letter detailing how he had licensed the Kong rights to RKO for King Kong and Son of Kong and nothing else. According to Cooper, Universal’s hold on Kong was illegitimate. Unfortunately for Cooper and his legal team, these letters could not be found. He claimed that they had been stolen.
Lawyers for producer John Beck, Universal, and Toho maintained that Cooper’s film rights to Kong were “non-existent” and only covered certain publication rights derived from a 1930’s novelization of the original screenplay. Cooper’s attempts to gain control of his creation went nowhere, and he grew impatient with his lawyers. The aging Cooper directed his assistant to draft a letter blasting his legal team for not addressing him by his proper title, “Brig. General USAF Ret.” The matter of Kong’s ownership was dropped, and the controversy did not return until the 1970s when a big-budget remake was in the works.
The Cooper Decision
RKO maintained that it could issue licenses for Kong’s use in film, television, and consumer products. In 1975, they issued a license to famed film producer Dino De Laurentis who wanted to make a big-budget remake of King Kong. Universal claimed that they had sole rights to make a Kong film, so they filed a copyright action in federal court against RKO, Dino De Laurentis, and Richard Cooper (Merian C. Cooper’s son).
Universal, sensing their case was weak, asked the court to find that King Kong was in the public domain, citing the original novelization written by Merian C. Cooper and Edgar Wallace had never had its copyright renewed under the Copyright Act of 1909 and that the book had gone into the public domain in 1960. Richard Cooper denied that story and filed a cross-claim against RKO, alleging, as his father had done, that Cooper only licensed the King Kong character to RKO for two films: King Kong and Son of Kong.
United States District Court of Los Angeles judge Manuel Real gathered all the Kong litigants in the same courtroom in hopes of getting to the bottom of the mess. Judge Real ruled that the King Kong novelization was, in fact, in the public domain and that Universal could make the film as long as it did not use elements from the 1933 film and used material only from the novelization. Significant discrepancies between the film and the novelization effectively blocked Universal from making anything recognizable as a King Kong remake.
The judge also ruled that the actual character of King Kong and the basic story belonged to Cooper. Real’s ruling declared that when RKO renewed their rights to the 1933 film, they acted as a “constructive trustee,” restoring the Cooper estate’s rights to Kong as well. The judge also found that RKO owed Cooper a share of the profits from all Kong licenses since Son of Kong. This decision is known as “The Cooper Decision” in fandom circles. In 1976, Richard Cooper sold his non-publishing Kong interests to Universal, and in 1980 the RKO and Universal claims were dismissed.
Universal vs. Donkey Kong
With the exception of a few toys and Halloween costumes, Universal had not flexed their Kong interests. Despite being a financial success, the 1976 King Kong remake was not a hit amongst fans of the original or critics. A 1970s Universal Kong film never happened. The Great Ape seemed to be a relatively minor property for his corporate owners. In 1981, Universal’s attitude toward Kong changed thanks to another beloved character of the 1930s.
In the late 1970s, Japanese video game company Nintendo was having trouble breaking into the North American market. One of their strategies was to make games based on characters familiar to American audiences. Their programmers were developing a game based on the well-known comic strip and animation character Popeye the Sailor Man. Unfortunately for Nintendo, the license for Popeye proved too expensive.
Nintendo’s young game designer Shigeru Miyamoto set about designing original characters based around the central Popeye love triangle story. Popeye the Sailor became Mario the plumber. Olive Oyl became his girlfriend, Pauline. Inspired by the 1933 King Kong film, Miyamoto transformed Bluto into the ape known as Donkey Kong. In 1981, the arcade game Donkey Kong landed in America.
Over the following years, the game would make $180 million for Nintendo. This success got Universal’s attention. In June of 1982, Universal sued Nintendo and ordered a cease and desist for all Donkey Kong licenses. Nintendo filed a counterclaim against Universal in response.
The court dismissed Universal’s suit. Universal appealed the decision and also lost. The courts found that the rights that Universal had purchased from Richard Cooper did not matter in the creation of the video game. The courts reasoned that Kong’s ubiquitous nature plus the fact that he had multiple owners negated any claims that Universal had against Nintendo. Unlike Mickey Mouse, who was clearly associated with the Walt Disney Company, Kong had no association with any group.
Kong at 100
In the late 1980s, RKO sold its film library to Turner Media. When Time Warner acquired Turner (which was later acquired by AT&T), Warner Bros assumed ownership of King Kong (1933) and Son of Kong (1933). Any aspect of the Kong story derived from the original film is owned by AT&T/Warner Brothers.
The Cooper Estate still owns publishing rights to Kong and has partnered with different writers and artists over the years to create Kong-related books and comics. The De Laurentiis Company retains ownership over the 1976 remake and its 1986 cheapo sequel King Kong Lives. Universal owns whatever is not covered under those rights holders.
Even though the first bit of Kong media (the Cooper/Wallace novelization) is in the public domain, one would be hard-pressed to make an independent Kong project recognizable as King Kong AND safe from the legal teams of AT&T, Universal, and the Cooper Estate. Twelve years from 2021, the King of Skull Island will celebrate his 100th birthday. As this milestone approaches, Kong’s legal status may once again come under review.
Major media companies have worked hard to extend copyright protection. I have a hard time imagining a world where Disney and AT&T’s corporate lawyers allow Batman and Donald Duck to become the property of any artist or storyteller with a vision featuring the beloved characters. Perhaps King Kong’s confoundingly Byzantine legal history will play into his favor. Maybe after 2033, writers, artists, and filmmakers can breathe new life into the tragic tale of the great beast felled by biplanes and beauty.