Retronauts - Retronauts Micro 053: Donkey Kong's Day in Court

Episode Date: December 12, 2016

Enjoy this delightful yarn about the legal wrangling over the matter of Donkey Kong's true parents. Is Shigeru Miyamoto really his dad? And who has custody over this simian tyke, anyway? Be sure to visit our blog at Retronauts.com, and check out our partner site, USgamer, for more great stuff. And if you'd like to send a few bucks our way, head on over to our Patreon page!

This week in Rotter Nuts, gimme, give me, gimme, the Donkey Kong Blues. One of the great enduring mysteries of video games is, Why on Earth has Nintendo never republished one of the most important creations of its entire existence? I'm referring, of course, to Donkey Kong. Sure, Nintendo sells Donkey Kong in many formats and with great enthusiasm, but here's a thing. Those are always the NES version of the game, the compromised NES version, which skips an entire

level, presents a compressed rendition of stage layouts that originally were designed along a vertical axis, and omits the eye-catching opening animation that sets the stage for the action by depicting Kong's destruction of the stage 1 girder assembly. Over the past 15 years or so, Nintendo has made the NES version of Donkey Kong available through Animal Crossing, on an e-reader card, as a standalone Game Boy release, on every version of virtual console, as a fragmented component of NES remix, and on the NES Classic Edition. Sorry about predicting those would be widely available at launch, by the way.

I'm probably forgetting a few versions of Donkey Kong, too. There was one distributed a few years back in the UK as a built-in ROM for the Wii console, which Nintendo hacked to restore the missing stage and some animations. But aside from a limited-time promotional download for 3DS owners, that revision has never been available widely. However, a proper conversion of the actual original Donkey Kong arcade game itself has only ever been available to purchase and own once, and never on its own. Rare slipped it into Donkey Kong 64 as a hidden unlockable back in 1999,

which honestly is probably the best thing about Donkey Kong 64. And no, that's not me throwing shade at DK64. I'm not really a fan of the game, but it's not terrible. It's just that the arcade version of Donkey Kong is one of the most significant video game releases of all time. And its ongoing absence from any home lineup published by the company that built its entire corporate empire on that game remains a glaring, inexplicable hole in history. A banana-yellow cartridge is all well and good, but the real treasure of DK64 was the code for a precious artifact of video games as a medium. And sure, fine, it's not as though the NES version of Donkey Kong.

lacks its own historical significance. At the time of its release, it was by far the most faithful and accurate home adaptation of the arcade original ever published. More to the point, Nintendo literally designed the NES hardware for the sake of giving players the most faithful and accurate rendition of the game possible. The NES hardware project had two mandates attached. One, it had to be sold for a rock bottom price without compromising quality, and two, it had to play an awesome game of Donkey Kong. The first mandate didn't quite work out. the console sold for about 50% more than the target price, and early models had to be recalled to address a hardware defect. On the second front, however, the NES delivered. But without

Arcade Donkey Kong, Nintendo probably wouldn't have had the opportunity to create the NES in the first place. Not only did Kong famously save the company from a looming financial disaster, but its sheer popularity around the world gave Nintendo a significant presence beyond the bounds of Japan for the first time, not to mention a remarkable war chest to work with. And it was an innovative work in its own right. Not only did it introduce two of gaming's most enduring characters, it also defined the platformer genre. And as Retronaut's regular Chris Kohler is fond of explaining, it helped establish the importance

of a narrative framework for games by breaking its endless loop play cycle into a four-chapter tail. So why the absence? Wither the vacancy in Nintendo's release lineup. When Nintendo announced Virtual Console Arcade back at GDC 2009, they should have led with Donkey Kong front and center. Yet for some strange reason, none of the company's classic coin-ops ever appear for play in any format. Not just Donkey Kong, but Donkey Kong Jr. and 3, Mario Brothers, punch out, and even more obscure fare like arm rustling or skyscipper. It's all just missing. No one can really say why Nintendo does anything it does, of course, the company seems to regard the idea of transparency as a tragic thing that only happens to other people. And aside from the occasional

PR curated interview, mere mortals have never had much opportunity to peer into the mysterious inner workings of the company. Still, the continuing absence of Nintendo's arcade productions may potentially be explained by a simple concept, rights issues. Based on some findings by the Game Developers Research Institute, taken in part from a 2005 book by Musumi Akagi called Sorewa Pong Kara-Hajimata, it may in fact be legally impossible for Nintendo to republish the arcade version of Donkey Kong. To understand this, you need to rewind to the 70s when Nintendo first entered the gaming market. The company to that point had dabbled in a great many ventures, ranging from instant rice to novelty toys.

But they'd struck onto something promising with their electromechanical arcade game installations and home games, like Wild Gunman and Duck Hunt. Those titles would eventually serve as the basis for actual video games. But to reach the point where the company could sell its own video games on its own console, first it had to do some foundational work in the medium. Those very first home games took the form of self-contained, dedicated devices in the home pong mold. To that point, though, Nintendo had very little direct experience with programming. Engineering genius Gunpei Yokoi could work wonders with electromechanical devices, but the actual programming and production of integrated circuits was a new and unfamiliar field.

So, like most companies entering the video game space of the time, Nintendo allied itself with firms that could handle the nuts and bolts of creating video game code. would provide design docs and help manufacture and distribute games, but the coding happened off-site in those early days. In our recent Famicom boom episode, we talked about the likes of Tosei, and how a number of work-for-hire programming outfits sprang up in Japan during the late 70s and early 80s to do the heavy lifting for companies that wanted to get into video games but lacked the personnel and experience to create their own projects from scratch.

Heck, Satoro Iwada got his start at Nintendo as a contract fixer for game code because of his specific knowledge of the NES's 6502 processor. Before the NES, though, Nintendo produced arcade games, and evidently the firm they hired to help out was an electronics company called Ikegami Sushinkie. While there's no confirmed list of games Ikegami assembled for Nintendo, their logo definitely shows up in Donkey Kong as well as Radar Scope, the game whose sales shortfall prompted Nintendo to design Donkey Kong in the first place. The involvement of Ikegami in these games doesn't lessen the fact that they were Nintendo

creations through and through. The concept and design for Donkey Kong came from Shigero Miyamoto, and Miyamoto led the creative development of the game. It's unquestionably his creation. Ikegami's role appears to have simply been to take those concepts, turn them into code, and turn out several thousand arcade boards for the machines. That's not to minimize their contribution either, since it was a very sophisticated game concept, and they totally knocked it out of the park.

But their role was to Miyamoto's as a construction crew to an architect. According to the GDRI's research, all was well and good until Donkey Kong became a huge hit. The initial run of a few thousand arcade boards suddenly proved inadequate when operators around the world began clamoring for more. So, according to the court records, Nintendo went ahead and produced tens of thousands of additional Donkey Kong boards without bothering to consult Ikegami.

If this sounds sleazy, keep in mind that intellectual property law regarding game code hadn't really been defined as of 1981, especially not in Japan. Did Ikegami own the code to Donkey Kong or did Nintendo? You can certainly understand why Nintendo, who designed and distributed the game and paid Ikegami money to do the in-betweening, might have regarded it as their uncontested property, and there were by no means the only company to have had that point of view. And when it came time to create a sequel,

Nintendo evidently decided it had become time to bring coding in a house. So they reverse-engineered the Donkey Kong board and used their findings to create its sequel themselves, thus Donkey Kong Jr. and without Ikagami's involvement. Long story short, Ikegami was less than thrilled at these turn of events and took Nintendo to court. I don't know copyright law as pertains to game code in Japan in 1981 well enough to be able to say how much of a case Ikegami actually had, but it must have been fairly strong as Nintendo ultimately settled the case out of court. Now Nintendo certainly has never been shy

about touting its legal victories, especially the ones in the 80s, such as their famous King Kong defense against Universal. So the fact that the Ikigami case vanished into history almost unheard of speaks volumes. According to Akagi's book, Ikegami opened the case in 1983, and it wasn't settled until 1990. It's also impossible to say what the actual outcome of that settlement was. But given that Japanese courts ultimately decided that game program code qualifies as original content that merits copyright protection in 1989, it's not unreasonable to assume that the settlement

a year later didn't really work out in Nintendo's favor. As well, this almost certainly brings us back around to the original premise of this episode, which is, why don't we ever see the original arcade version of Donkey Kong? The reality is, Nintendo may not have the rights to distribute it. In a bitter split custody situation of intellectual property, it's not unusual for one party or another to complicate the re-release of that property in hopes for better terms, or, in some cases, just for the sake of pure spite. Consider the nastiness that surrounded the HD releases of the original Star Wars trilogy, since Fox owned rights to episode four and locked horns with Lucasfilm about the movies for years. Maybe the Kong case settlement terms were that Nintendo

could never reissue the arcade games that Ikegami programmed. Or maybe Ikegami would be okay with it, but wants more in royalties than Nintendo is willing to pay. We'll never know, because the case was settled outside of a public court of law, and Japanese business culture demands nothing if not discretion regarding conflicts. Of course, there's also a third possibility. Who's to say everything wasn't settled? And Nintendo simply bought the game code ownership outright and simply doesn't republish the original arcade version of Donkey Kong because they prefer to paint over their entire arcade history. After all, Nintendo produced their own arcade works without the help of Ikigami, yet we never see games like Punch Out compiled anywhere, even though its dual screen format

and its resolution would have been a slam dunk for a 3Ds port. Maybe Nintendo's just waiting for the right time to unleash a Nintendo arcade originals collection upon the world. Who really knows? Only Nintendo, and they're not saying. These days, Ikegami Sushinki is still around, still producing high-end video products and broadcast electronics. Their corporate site says nothing about video games, though. Still, Donkey Kong wasn't the end of their work as a silent hit squad for arcade manufacturers.

Ikegami is known to have produced two games for Sega around 1982 and 83. The first, Zaxon, upheld the company's reputation for technical excellence. It was a complex and great-looking isometric shooter that sent players battling through a fixed, three-dimensional space. The second, Kongo Bongo also featured isometric graphics, but rather than involving spaceships, it instead featured a man working his way up the scenery toward a massive ape who attempted to thwart his journey by chucking hazards at him. Sound familiar? Yeah, Congo Bongo is basically Donkey Kong in 3D.

It's not even shy about it. Again, it's impossible to know if this was a deliberate act of spite by Ikegami, a take that to Nintendo for its handling of Donkey Kong's code. Everyone was cloning and ripping off Donkey Kong in those days, so it's entirely likely that Sega simply happened to hire Ikegami to build its own Kong clone. But then again, Congo Bongo's known release date, 1983, is also the same year that Ikegami took Nintendo to court, which means that just maybe, Ikegami came to Sega and said, Hey, you know that game engine we created for Zaxon? We have an interesting idea for that.

In any case, both Sega and Nintendo entered the home console market as first party rivals that same year, 1983. If nothing else, the common connection between Donkey Kong and Congo just adds another layer of depth to what would become gaming's most interesting and longest-running rivalry. In the meantime, the status of Donkey Kong's arcade code remains shrouded in uncertainty. It makes for an interesting anecdote,

but it does suck that such a significant video game creation appears to be locked away behind a decades-old copyright dispute and legal paperwork. For Retronauts, this is Jeremy Parrish. Check us out at Retronauts.com, on iTunes, and on Patreon, to help enable us to continue creating podcasts like this one. We'll be back next week with a full-length episode.