Super Mario

by Jeff Ryan

  Arakawa had a new challenge: how to spend the money. The original plan of marketing the Japanese product overseas for an additional slice of profit was becoming inverted: America ate up the games like cheeseburgers. Nintendo needed an American hub, not just a rented warehouse. (Mr. Segale, presumably, was all squared away by this point.) Arakawa purchased twenty-seven acres of land in Redmond in July 1982. Nintendo could have paid in rolls of quarters.

  Arakawa may have needed a proper headquarters just to hold back the people knocking on his door, cash in hand. Licensing companies left and right were eager to have Nintendo sign deals for the likeness of Donkey Kong’s hero and villain. Pajamas, breakfast cereal, Saturday morning cartoons, plush stuffed animals, Topps trading cards, Fleer candy. The B-side of the Buckner and Garcia novelty song “Pac-Man Fever” was “Do the Donkey Kong.” Arakawa’s worries now weren’t that he’d go out of business, but that he’d leave money on the table.

  Milton Bradley even adapted Donkey Kong as a board game: Kong himself was a toy that could throw small yellow barrels, as one to four Marios (drawn with a long chin and a bouffant mustache that would soon characterize Luigi) moved up the Chutes-and-Ladders – style board. The game was simple, but came with instructions longer than the prescribing information for most pharmaceuticals.

  And, of course, Donkey Kong became a console video game. Taito offered a big chunk of its Space Invaders money to Nintendo for all rights to Donkey Kong. Nintendo knew to sell the milk, not the cow. American companies such as Coleco and Atari also vied for the rights. Yamauchi looked at who had the best technology, who had the most avenues for distribution, and who would fork over the most per unit sold. The decision from Kyoto: Coleco would get the exclusive rights. “It was the hungriest company,” Yamauchi explained. It was also, notably, American. Atari was offering more money, but Coleco execs camped out in Arakawa’s hotel room one night, imploring on Nintendo to honor Yamauchi’s decision. Arakawa did, saying he was impressed with Coleco’s passion.

  Coleco received all tabletop and cartridge rights to Donkey Kong. In exchange, Nintendo received a lump-sum payment, plus a buck in royalties for every tabletop game, and $1.40 for each console game. Coleco packed Donkey Kong with every unit of its new ColecoVision game system: after six months of exclusivity there, Coleco would port it to rival consoles such as the Intellivision and the 2600s. The prestige of bundling such a popular game with its new console helped make the company half a billion dollars in sales, and $40 million in pure profit. Mario should have been called Midas.

  In Kyoto, Shigeru Miyamoto was tasked with making a sequel. He had had huge plans for the original Donkey Kong, but had had to work with the sloppy seconds of Radar Scope’s primordial ooze. Now, though, he had carte blanche—and a team to do the grunt work of designing it for him. Millions of quarters had given his initial vision validation. Gamers around the world wanted to go on another adventure with the heroic Mario.

  Miyamoto wasn’t feeling that, though. He wanted to rotate the love triangle, give the big ape some respect. Donkey Kong, being too big for 1982-era machines to make a playable character, would play the Pauline role, the helpless kidnapped one. A new character, Donkey Kong Jr., a smaller and more agile ape, would be the hero. He’d also get the game named after him, à la Ms. Pac-Man, gaming’s most successful sequel.

  That left one more character and one more role to fill. Miyamoto knew it was good drama to upend audience conventions, to make them all of a sudden have pity on a villain, and also to see the unexpected mean streak in the one they thought was a hero. So Mario would be the villain, the master who locks up his pet and won’t let him go free. And tries to kill the son who attempts a jailbreak. It was a natural next step for the relationships, for the story.

  Numerous licensers who paid big money to slap a grinning Mario and a snarling Donkey Kong onto their products must have been shocked. This was not how a brand was built! Miyamoto found himself accused of not knowing his characters, at a time when the characters barely were extant. But Donkey Kong Jr. was hardly a misstep, even if it too altered expectations. The single-jump button was still there, but Junior could climb up a series of chains and vines, as well as jump. There were items in the chains and vines, and by touching them Junior dropped them onto various enemies below. That replaced the hammer attack.

  And the enemies! There were living bear traps, snapping madly and dragging unleashed chains behind them. There were yellow-andpurple birds that hopped around and glided through the air in deadly assaults on Junior. And there were sparks, living dollops of anthropomorphic electricity that ever so slowly inched their way up the chains. Miyamoto had the “Snapjaws” move in two different ways, and colored them differently as a clue. It would become a Mario tradition: the recolored sprite attacking in a different manner. Mario himself showed up with an identical twin, to move a cage around: perhaps Luigi borrowed his brother’s red overalls for the day.

  Donkey Kong Jr. wasn’t what anyone expected for a sequel, but no one expected Donkey Kong to come out of the guts of a space shooter. Nintendo was virtually printing cash by putting anything with Mario or Donkey Kong’s face on it, so it crossed its corporate fingers and sent the game out into the world of 1982.

  It was a hit. Notably, it was a different enough game from Donkey Kong—not a remake, not an improvement, but a new series of levels to conquer—that it seemed to have an almost negligible effect on the popularity of the original. Nintendo and Mario would learn this lesson well: a franchise character could appear in various different types of games and not glut the market—provided the games were all suitably different from each other. (Later franchises from Army Men to Star Wars failed to learn this, to their dismay.)

  Coleco, which was still preparing its dominant ColecoVision, was contacted by MCA Universal, which wanted to invest in the company. As reported by Steven Kent in The Ultimate History of Video Games, the investment pitch in Los Angeles, including a walk-on visit by Universal’s wunderkind Steven Spielberg, was more assassination than assignation. Once the two companies’ presidents were in the same room, Universal’s president dropped the pretense of an investment and threatened to sue (read: destroy) Coleco if it shipped the ColecoVision with Donkey Kong. Donkey Kong, Universal felt, was an infringement on its own King Kong character.

  A telex (this was before e-mail) laid it on the line to Coleco: destroy all Donkey Kong property, stop any and all marketing, and give us every cent you’ve made off the ape. Universal sent the same telex to Nintendo of America. Coleco, desperate to have an unblocked path to release the ColecoVision, quickly agreed to fork over 3 percent of net profits to Universal. The profit-slice turned out to be worth almost $5 million. Coleco didn’t inform Nintendo about this, which seems puzzling, since the lawsuit implies that Nintendo had licensed an illegal product.

  Nintendo’s initial response to the telex was similar to Coleco’s: let’s pay up to get rid of this quickly. They certainly had enough money lying around: $5 million of it might save a lawsuit. Anyone in gaming knew that success drew lawsuits: if not from Atari or Magnavox, then Universal. Wait, how about $7 million?

  Then, Nintendo of America’s lawyer Howard Lincoln had an epiphany. Lincoln, formerly Al Stone and Ron Judy’s attorney, had the previous year arranged for trademark protection for Donkey Kong, paving the way for millions in lucrative licensing fees. Millions and millions, in fact. Nintendo had the money to fight this, if it wanted. It wasn’t a six-person start-up anymore. Furthermore, Lincoln did some research and realized Nintendo had a tremendous case against Universal. Donkey Kong and King Kong were different animals. Arakawa was chagrined to not just pay some hush money, as Yamauchi wanted. But Lincoln convinced him it was the right thing to do.

  A three-party meeting was held in Los Angeles, Universal’s backyard, to attempt to straighten things out. Arakawa and Lincoln attended for Nintendo, along with reps for Universal and Coleco (who still hadn’t told Nintendo it had capitulated). Nintendo said Universal was
, to skip the legalese, full of it. There were lots of other unlicensed King Kong products on the market, and Universal hadn’t gone after any of them. This was about Nintendo’s money. Coleco sheepishly tried to get Nintendo to fold to Universal. But Nintendo wasn’t budging.

  Universal promised Nintendo it would send a chain of title for King Kong, documented proof that it owned the property. That would be the easy part of the legal battle, of course: the hard part was proving that Donkey Kong was a rip-off of King Kong. No one had ever asked a judge or jury to decide how close a video game had to be to impinge on a film. But no chain of title arrived in the mail at Redmond. When Nintendo asked again for it, Universal instead demanded a royalty payment. It was a foreshadowing of Universal’s poor legal standing.

  In a possibly perfidious piece of brinkmanship, Nintendo arranged a special meeting with Universal, to discuss matters. These sorts of meeting are only called when there’s something to discuss, i.e., Nintendo caving in to Universal’s demands. Universal’s president personally attended, wanting to see the upstart Nintendo fall on its own sword and offer him royalties. But Lincoln and Arakawa merely reiterated their already-stated belief: we’re not liable and won’t be paying you anything. To quote Ice Cube, it was on like Donkey Kong.

  “His reaction was shock,” Lincoln recalled. Universal made movies, and its movements seemed reflective of this: big, bombastic, very entertaining, but as ephemeral as the fog around Skull Island. Nintendo, on the other hand, was a game company. Its lawyer just scored a major tactical victory, without the pieces on the board moving a whit.

  As if the suit wasn’t complicated enough, a new player entered: Tiger Electronics. Tiger had exclusively licensed King Kong from Universal for a handheld game. Universal realized that if Tiger kept that exclusive license, and Donkey Kong was shown to be the same as King Kong, then only Tiger would be able to sell Donkey Kong games. Furthermore, Tiger’s King Kong game was a pretty blatant swipe from Donkey Kong. (The layers of irony are like a lasagna.) Universal rejected the game. Tiger redesigned it to have bombs instead of barrels, and straight instead of crooked platforms. Also, the hero was given a fireman’s hat.

  Universal continued its aggressive actions, officially suing not only Nintendo but six other companies to whom Nintendo had licensed Donkey Kong. It collected royalties from all but two of them: Milton Bradley for the Donkey Kong board game (which refused to pay) and Ralston-Purina for Donkey Kong cereal (which offered a measly five grand, which Universal rejected). Combined with Coleco’s payments, Universal was already making steady money off of a case that hadn’t even started yet. This was the benefit of lawyering up: smaller companies backed down so fast, it was almost a legal form of theft.

  Nintendo was seeing this through to the courtroom, though. Howard Lincoln had pulled in a hotshot trial lawyer named John Kirby to mount the Nintendo defense. Universal City Studios Inc. v. Nintendo Co. Ltd. lasted seven days. Kirby listened to Universal’s legal team explain its case: the two have similar plots, they’re both apes named Kong, so in conclusion give us the money. Kirby, in turn, highlighted every difference between the game and the film. He read deposed statements from Shigeru Miyamoto, explaining how the game was designed.

  Then, Kirby sprung the trap. In 1975, Universal had sued RKO, the original makers of King Kong. Universal, in a case-winning argument, had proved that King Kong was in public domain, since the movie was from 1933. Universal didn’t need to pay a dime to the “owners” of King Kong, because anyone could do whatever he wanted with King Kong. Kong was as unownable as Huck Finn. Then, Kirby asked for a summary dismissal of the suit. Granted.

  The word “hubris” might not be strong enough for Universal at that time. It had, after all, knowingly collected millions of dollars, and started a half dozen lawsuits, all on a claim that it had proven, in the public record no less, to be bogus. How did it think it was going to succeed?

  Judge Robert W. Sweet tore into Universal, in a blow-by-blow beating as thorough as it was brutal. First, Universal didn’t own King Kong. Second, even if it did, Donkey Kong wasn’t a copy of King Kong. Third, even if it was, it would be considered parody, which is legal.

  Sweet was just getting started. Any company Universal had hit with cease-and-desist letters had the right to sue Universal to get back its “royalty” payments and more. There was one clear copyright violation that came to light, though. Judge Sweet felt Tiger’s King Kong game, even with its superficial changes (a fireman’s hat!) was a clear knockoff of Donkey Kong. Universal had to pay a license fee to Nintendo for Tiger’s game. Universal’s loss could only have been greater if the judge ordered back royalties to the planet Earth for its use in the film company’s logo.

  Universal countersued Nintendo, and the ensuing battle took a few more years to conclude. Universal lost every suit. In the end, it had to pay nearly $2 million to Nintendo to cover its rival’s legal fees. This wasn’t counting all the other lawsuits it had on its hands, or the millions in fees it spent trying to prove, in an “abuse of judicial process,” that Donkey Kong and King Kong were one and the same.

  Coleco got its money back (via Universal buying a chunk of its stock), but its lack of business fortitude was now public. It and Atari were both working on computers. Coleco was going to include Donkey Kong on a floppy disc as the pack-in game for its “Adam” computer. Adam premiered, playing Donkey Kong, at a Chicago trade show. Coleco was promptly contacted by lawyers from Atari. Nintendo had licensed the floppy-disc rights to Atari for its Atari 800 computer. Coleco had assumed it had them, as part of the console and tabletop rights. Yamauchi intervened, and bullied Coleco into shelving its unlicensed game. He almost certainly chose to play a game of chicken with Coleco because he remembered Coleco caving in to Universal. Coleco caved again. (The floppy-disc version for Atari’s computer, the Atari 800, was never released.)

  Nintendo’s victory, in comparison, was unparalleled. Most other game companies either went out of business or were gobbled up by the big boys. But Nintendo faced down a muscular extortionist of a rival. Like a boy who realizes during a bully showdown that he has become a man, Nintendo learned how powerful it really was, after a mere two years. Howard Lincoln, for his part, rose from being Nintendo’s lawyer to being its senior vice president and general counsel.

  And trial attorney John Kirby was given a boat. The thirty-thousand-dollar sailboat was named, of course, Donkey Kong. Kirby was also given “exclusive worldwide rights to use the name for sailboats.” Finally, as Mr. Segale before him, Mr. Kirby may have been rewarded with Nintendo’s greatest honor. Starting in 1992, Nintendo released a popular series of games about a cute little pink fluffball. His name? Kirby.

  4 – MARIO’S EARLY YEARS

  THE VIDEO GAME CRASH OF 1983

  Voice actor Peter Cullen may not have a recognizable name, but everyone’s heard his pipes. For the last twenty years he’s been everyone from the sad-sack Eeyore in Winnie the Pooh, to the villainous K.A.R.R. in Knight Rider, to the clicking flange-jawed Predator. He hit the trifecta of giant-morphing-robot cartoons in the early eighties, doing voices for Go-Bots, Voltron, and most memorably Optimus Prime in Transformers. (He still voices a CGI Optimus for the live-action remakes.)

  But before Optimus Prime became his trademark role, Cullen was Mario. An animated anthology program called the Saturday Supercade on CBS in 1983 featured characters from various video games, all with brief cartoons in a half-hour show. Q*Bert, the hopping star of a maze game, became a fifties-style teenager on the run from bullies. Frogger, about a poor animal trying to cross a busy road, was now about an amphibious reporter. Pitfall, at least, was a more traditional action-adventure, since Pitfall Harry was a blatant Indiana Jones rip-off.

  Mario was clearly the second banana (sorry) in the cartoon of Donkey Kong: Soupy Sales’s titular gorilla was the lead. DK was a Bugs Bunny type, always one step ahead of his circus trainer, Mario, who was trying to recage him. Mario was reduced to the Elmer Fudd role. Pauline was re
cast as Mario’s niece, who intervened on Donkey Kong’s behalf when Mario grew too close to capture.

  The slapstick portrayals didn’t mesh with the game, where tension and death awaited every misstep. And the show gained an odiously revisionist second act when the Donkey Kong Jr. cartoon premiered the following year, featuring lonely Junior’s quest to find his missing father. The show made DK seem to be a deadbeat dad, undeserving of his son’s efforts at reunion. But perhaps the gentle good humor helped soften Mario and Donkey Kong’s edges.

  The two rivals, though, would be parting ways. Shigeru Miyamoto introduced a new human protagonist for 1983’s Donkey Kong 3, Stanley the exterminator. Donkey Kong, residing in the upper center of the screen, and again in the heavy role, is hanging between two jungle vines. When he punches a hive, a staggering variety of bugs pile out, ready to attack Stanley with all-different attack patterns. The exterminator has to zap them all with his bug spray, then once they’re gone grab some super bug spray and spritz Donkey Kong himself. (No little fun has been had with Stanley’s only available target: the gorilla’s rear end. The gorilla braces when he receives the bidet-style insecticide.)

  Donkey Kong 3 was, behind the jungle canopy, a clever reworking of Space Firebird, Nintendo’s old dogfighting game. Space games weren’t selling that well, but the game play was almost identical. Besides, Miyamoto was working on two games at the same time (not counting the DK3 adaptation Green House for the Game & Watch), and couldn’t be expected to generate all-original content for both.

  For that other game, Miyamoto was spinning off Mario into his own title. Mario was originally a carpenter, since he was at a construction site. But, a friend told Miyamoto, the overalls and hat and pudgy willingness to leap into nasty situations made him really more of a plumber. Hmm, Miyamoto thought. There could be a video game about plumbing. And Mario could be the star.