King Kong Tribute Thread (THE REAL KING KONG!)

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johnboy3434
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

Post by johnboy3434 »

Well, I'm fairly positive that in the absence of a trademark, whatever rights there are should be expired by 1 January 2044. That will be 70 years after Merian Cooper's death. He was determined to be the sole "author" of the King Kong IP in 1976, and "death plus 70 years" is the longest relevant extent of copyright on personal works outside of a handful of countries (Mexico being the most prominent).
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

Post by Pkmatrix »

johnboy3434 wrote:
Terasawa wrote:
johnboy3434 wrote:True, but ... how exactly is the character not in the public domain?
Because in 1976 a judge ruled that the Cooper estate had the rights to the character and everything else King Kong except:
  • The R.K.O. films themselves.
  • The Toho films themselves.
  • The novelization itself.
That ruling was never overturned.
Except you can't simply own an idea itself, and you can't do it in perpetuity. The idea has to be attached to something, be it a copyrighted work or a trademarked name/appearance/whatever. Something that will either fall to the public with time or else depend on the rightsholder's continued use. If you don't have either of those, then you don't really have anything, so they must have something in writing besides a 40-year-old judgment saying "Congratulations, you have a big monkey".

Sorry, I'm not trying to be a bitch about this. I simply don't understand exactly what the "rights" to the Kong character consist of if it's neither copyright nor trademark.
I, meanwhile, HAVE had the patience to track down and read the legal rulings.

As I've posted before, the last word on this is final ruling on Universal v. Nintendo, dated July 15, 1986. You can read it for yourself here:

Universal City Studios, Inc., Plaintiff-appellant, Cross-appellee, v. Nintendo Co., Ltd. and Nintendo of America, Inc.,defendants-appellees, Cross- Appellants, 797 F.2d 70 (2d Cir. 1986)

TL;DR: Wikipedia is wrong, and written in a way to make it sound like Kong is not public domain when that is not what Universal v. RKO or the Cooper Judgement - as understood and summarized by Judge Real in 1986 - ruled. That ruling was, in fact, that Kong the character and story was in the public domain.

Here's the relevant portion. Note the parts I've highlighted:
In 1975 a dispute had developed between Universal, RKO Radio Pictures, Inc. (RKO), and the Dino DiLaurentis Corporation (DDL), as to who could produce a remake of the film "King Kong." RKO had produced the original film in 1933, which was based upon a book by Merian C. Cooper, who also co-authored the screenplay. In 1975, RKO licensed DDL to produce a remake, a result that upset Universal, which claimed that it had been offered the license in negotiations.

In August 1975 Universal filed suit in federal court for the Central District of California seeking a declaratory judgment that the copyright on the King Kong story had lapsed, that the story was in the public domain, and that Universal could produce a remake without infringing the rights of RKO or DDL. Universal City Studios, Inc. v. RKO General Inc., et al., C.V. 75-3526-R (C.D. Cal. 1975). RKO counterclaimed asserting, among other things, that Universal had diluted its trademark in King Kong. At the conclusion of a four-day bench trial, Universal's regular outside trial counsel, Stephen Kroft, argued that King Kong could not be a trademark because it had no secondary meaning and was part of the ordinary English language.

On November 24, 1976, the district court found that the King Kong story, as embodied in the original novel, had become part of the public domain, and that RKO had a copyright only in "the copyrightable matter" which was contained in the 1933 movie but not in the original novel. Universal City Studios, Inc. v. RKO General, Inc., et al., C.V. 75-3526-R (C.D. Cal. Nov. 24, 1976) (Findings of Fact and Conclusions of Law). The court found that Universal could make a movie based on King Kong as long as it did not infringe on the copyrightable scenes of the 1933 movie. Id.

The court denied relief on RKO's counterclaim alleging trademark dilution, adopting Universal's argument that there had been no such dilution and, further, that:

"1) There is no evidence that the title 'King Kong' has a secondary meaning by which the public [in 1976] indentifies such title with RKO or the motion picture.

2) The name 'King Kong' has become part of the ordinary English language."

Id. The court reduced these findings to a judgment (the RKO judgment)1 on November 24, 1976.

Richard Cooper, Merian's heir, was a defendant in the RKO litigation and had filed a cross-claim against RKO. On December 6, 1976, the court entered an interlocutory judgment which determined that Merian Cooper's agreement with RKO had given RKO the right only to produce the 1933 movie and the "Son of Kong" sequel. Richard Cooper v. RKO General, Inc., C.V. 75-3526-R (C.D. Cal. Dec. 6, 1976).

The district court later entered findings of fact and conclusions of law in conjunction with a final judgment (the Cooper judgment) on Richard Cooper's cross-claim. The court incorporated its previous findings from the interlocutory judgment and concluded that, as between RKO and Cooper, Cooper possessed all rights in the name, character and story of King Kong other than the rights in the 1933 movie and the sequel "Son of Kong." The court also found that RKO's license with DDL for the remake of King Kong, and its licenses with certain toy manufacturers, had breached RKO's original limited assignment from Merian Cooper. Therefore, RKO owed Richard Cooper the profits accrued from these breaches. The court consistently noted, however, that its determination of Richard Cooper's cross-claim did not affect any other person and did not affect its finding that the King Kong story was in the public domain.

It is clear from the above that Cooper did not hold any trademark rights against the world in King Kong. Any such rights that might exist would be solely against RKO.

After the entry of the Cooper judgment, Cooper assigned all of his rights in King Kong to Universal for $200,000. The primary value of the assignment, it appears, was Cooper's right to receive certain revenues DDL would pay to RKO under DDL's license to produce a King Kong remake. DDL released that remake in December 1976.
In regards to Kong's status, the court in Universal v. RKO ruled that King Kong story as embodied in the novel was public domain and that RKO only had a copyright over the parts of the 1933 film and Son of Kong that were unique to those films and could not be traced back to the novel. Therefore, Universal was given the legal greenlight to produce their own King Kong film as long as it was based on the novel and did not infringe on the unique elements of the films RKO owned, "the copyrightable matter".

THIS IS NOT the same thing as saying "only the publication rights of the novel are public domain". Legally, whatever is copyrighted FIRST counts as the originating work and all that follows is derivative. If the originating work falls into the public domain, then whatever's in it IS PUBLIC DOMAIN. The novel was copyrighted before the movie, so LEGALLY the movie King Kong is an adaptation of that novel. It doesn't matter that it was based upon a draft of the screenplay or that the film was basically finished by the time the book was published, the law before 1978 is based ENTIRELY on when the paperwork was filed and the screenplays were not formally copyrighted before the book. It's not like today where copyright is automatic, you had to actually fill out a form and get it processed. The copyright didn't exist until it was officially registered with the U.S. Copyright Office.

What the court ruled in Universal v. RKO is the same legally as why anyone can make a Frankenstein film as long as they aren't stealing elements created for the Universal film, like the iconic makeup/character design.

The Wikipedia article places special emphasis on the outcome of Cooper v. RKO and how the Cooper estate beat RKO's appeal of that judgment, but again is written in a misleading way.

What was determined was that RKO had violated the original agreement with Merian C. Cooper, and between COOPER AND RKO ONLY it was clear Cooper had possessed all the rights to Kong and therefore all of the licensing agreements RKO had made since the 1930s with toy manufacturers, Dino De Laurentis, John Beck and Toho Studios, etc. were in breach of contract and RKO was ordered to hand all of this over, as well as pay back all the money they had taken while falsely claiming to own King Kong.

BUT this was only in relation between the Coopers and RKO. No one else. Even in the Cooper Judgement, it is noted that the court consistently ruled that this ruling that Cooper had possessed all the rights did NOT affect the ruling that King Kong had entered the public domain. That was still the case. It was just that RKO owed the Cooper's a ton of money for claiming they owned it when they did not. Wikipedia adds the bit about the appeals being denied and "the Cooper Judgement being reinstated", which makes it sound like it somehow erased the Universal v. RKO judgment. That is not the case, just that appeals were denied so the Cooper Judgement was not overruled or replaced.

This IS a convoluted mess, but I hope this helps clarify the situation.

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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What about the parts that Willis O’Brien thought he owned the rights to? I know he was shopping Kong around for a bit, and even Edgar Rice Burroughs.
"Monsters are tragic beings. They are born too tall, too strong, too heavy. They are not evil by choice. That is their tragedy. They do not attack people because they want to, but because of their size and strength, mankind has no other choice but to defend himself. After several stories such as this, people end up having a kind of affection for the monsters. They end up caring about them." - Ishiro Honda

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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Which explains a LOT as to how K:SI got made. Legendary and Warner Bros. didn't have to pay ANYBODY to make their movie, because it had NOTHING to do with the previous iterations of Kong. Also, it means that Bandai/Tamashii only needs Toho's permission to make Showa Kong toys, as ONLY Toho owns their version of Kong, as it has nothing to do with the 1933 version...

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

Post by johnboy3434 »

Pkmatrix wrote:snip
You are a gentleman and a scholar! Nice to get clarification on this. So it's as I thought: Kong the character is free for anyone to make a film around so long as, like with any other public domain character (e.g., Dracula), you stay away from concepts unique to works that are still copyrighted. It may be more trouble than it's worth since Universal may sue you anyway in the hopes of scaring you off, but on paper you are legally allowed to do it.
MandaSaurus wrote:Which explains a LOT as to how K:SI got made. Legendary and Warner Bros. didn't have to pay ANYBODY to make their movie, because it had NOTHING to do with the previous iterations of Kong. Also, it means that Bandai/Tamashii only needs Toho's permission to make Showa Kong toys, as ONLY Toho owns their version of Kong, as it has nothing to do with the 1933 version...
Didn't Warner get Universal's okay on Kong just to be safe (whether they had to or not)? I haven't looked in the fine print at the end of KSI's credits.
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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KSI originally started production at Universal but was moved to Warner for the GVK crossover.
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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MandaSaurus wrote:Which explains a LOT as to how K:SI got made. Legendary and Warner Bros. didn't have to pay ANYBODY to make their movie, because it had NOTHING to do with the previous iterations of Kong.
I'm pretty sure Universal let LP take the project to WB because in 2014 LP signed an exclusive deal to co-produce films with Universal. The only exceptions were Godzilla 2 & 3 as well as Interstellar via a pre-existing commitment with WB before they cut the deal with Universal. So to make any other film including K:SI with another studio would have violated the terms of the deal they signed with Universal.

As well WB owns rights to the character via acquiring the original film from RKO. Thats why thier Kong looks like the original since that likeness is owned by WB.
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

Post by SoggyNoodles2016 »

Mr. Yellow wrote:What about the parts that Willis O’Brien thought he owned the rights to? I know he was shopping Kong around for a bit, and even Edgar Rice Burroughs.
unless I'm wrong, that was back when RKO still existed and had the rights so long before the debacle with Paramount and Universal both having the rights to do a remake that led to the current roles. I'm pretty sure Willis O'Brien also got screwed out of his rights by John Beck at Universal, also?
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

Post by Pkmatrix »

SoggyNoodles2016 wrote:
Mr. Yellow wrote:What about the parts that Willis O’Brien thought he owned the rights to? I know he was shopping Kong around for a bit, and even Edgar Rice Burroughs.
unless I'm wrong, that was back when RKO still existed and had the rights so long before the debacle with Paramount and Universal both having the rights to do a remake that led to the current roles. I'm pretty sure Willis O'Brien also got screwed out of his rights by John Beck at Universal, also?
I'm in the middle of reading Kong Unmade at the moment, but my understanding based on what the book says and what I've heard elsewhere:

O'Brien didn't think he owned Kong, he thought RKO owned Kong (as many people at the time did, since RKO had been going around claiming that for years).

When he was trying to get King Kong vs. Frankenstein off the ground he went to RKO to get the film made. RKO thought (incorrectly, but again as many people at the time assumed) Universal owned all the rights to Frankenstein (Frankenstein is public domain) so the script was rewritten into King Kong vs. the Gingko. RKO declined on producing the film, but gave their blessing to O'Brien to shop it around to other studios and introduced him to John Beck. Beck had the script rewritten again into King Kong vs. Prometheus and shopped it around Hollywood, but nobody would make it. He went back to RKO and they introduced him to representatives from Toho (RKO distributed The Mysterians for Toho), and the rest is history: Toho agreed to the project, paying RKO $220,000 for the rights to use Kong in Toho films up through 1967, dumped the existing script, and produced King Kong vs. Godzilla.

Cooper only found out about all of this (if I remember right) when it was announced Universal had secured the U.S. distribution rights for King Kong vs. Godzilla, at which point he sued RKO.

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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MandaSaurus wrote:Which explains a LOT as to how K:SI got made. Legendary and Warner Bros. didn't have to pay ANYBODY to make their movie, because it had NOTHING to do with the previous iterations of Kong. Also, it means that Bandai/Tamashii only needs Toho's permission to make Showa Kong toys, as ONLY Toho owns their version of Kong, as it has nothing to do with the 1933 version...
OK, here's one in regards to Showa Kong.

Toho's permission must only extend to Japan, or Asia in particular? Hence why no Showa Kong stuff officially released or shown outside of Asia (no toys, other merch or appearances in comics or video games).

Toho would need Universal, or whomever's permission to use Showa Kong in any form outside of Asia?

Didn't Toho get kongblocked when trying to use Kong, and then by extension Mechani-Kong in a later Godzilla movie?

On the subject of the latter, how does all of this affect Mechani-Kong, as well I suppose KKE version of Gorogsaurus and/or Giant Sea Serpent?
"Monsters are tragic beings. They are born too tall, too strong, too heavy. They are not evil by choice. That is their tragedy. They do not attack people because they want to, but because of their size and strength, mankind has no other choice but to defend himself. After several stories such as this, people end up having a kind of affection for the monsters. They end up caring about them." - Ishiro Honda

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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Mr. Yellow wrote:
MandaSaurus wrote:Which explains a LOT as to how K:SI got made. Legendary and Warner Bros. didn't have to pay ANYBODY to make their movie, because it had NOTHING to do with the previous iterations of Kong. Also, it means that Bandai/Tamashii only needs Toho's permission to make Showa Kong toys, as ONLY Toho owns their version of Kong, as it has nothing to do with the 1933 version...
OK, here's one in regards to Showa Kong.

Toho's permission must only extend to Japan, or Asia in particular? Hence why no Showa Kong stuff officially released or shown outside of Asia (no toys, other merch or appearances in comics or video games).

Toho would need Universal, or whomever's permission to use Showa Kong in any form outside of Asia?

Didn't Toho get kongblocked when trying to use Kong, and then by extension Mechani-Kong in a later Godzilla movie?

On the subject of the latter, how does all of this affect Mechani-Kong, as well I suppose KKE version of Gorogsaurus and/or Giant Sea Serpent?
Not sure about the KKvG version of Kong, that one is in some really murky waters...presumably, if they wanted to use the likeness of KKvG Kong they'd need Universal's permission. The King Kong Escapes version of Kong and Mechani-Kong are outright owned by Universal. Mechani-Kong is not a Toho creation, he was a character created for the King Kong cartoon series by Rankin/Bass for RKO - KKE is a live action movie adaptation of the cartoon.

None of this has to do with Universal having distributed the movies (that's just how they got involved), but rather because of the outcome of Cooper v. RKO. After the courts forced RKO to hand over all the contracts and licensing agreements and tie-in merchandise etc. to the Cooper family, the Coopers turned around and sold most of it to Universal. That's how Universal ended up with the Rankin/Bass King Kong cartoon (and, because of that, Mechani-Kong).

I think Gorosaurus and the Giant Sea Serpent in KKE were original Toho characters created for the movie? And thus are owned by Toho.

Toho's issue with Kong in the '90s was that they tried to cut a deal with Ted Turner, who had bought the rights to the 1933 movies. It's not clear whether they were unaware of all these court decisions and though they needed to get the rights from Turner because they had bought them from RKO previously, or were trying to be extra cautious. (Kong Unmade has a chapter on this, but I haven't gotten to it yet - very interested in reading what the book has to say on the whole thing!) The Godzilla vs. Mechan-Kong project died when Toho looked into the rights situation and realized they didn't own Mechani-Kong and didn't want to bother with trying to figure out who did.

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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I really need to get the Kong book.

It’s weird because Toho is so particular about how their characters are used, and even particular about what versions are used where. I’ve heard that any original character created for use in licensed Godzilla media is suddenly property of Toho so that’s why I was curious about Sea Serpent (I did know about the Rankin-Bass cartoon). I wonder if the Marvel Godzilla is tied up in anything...
"Monsters are tragic beings. They are born too tall, too strong, too heavy. They are not evil by choice. That is their tragedy. They do not attack people because they want to, but because of their size and strength, mankind has no other choice but to defend himself. After several stories such as this, people end up having a kind of affection for the monsters. They end up caring about them." - Ishiro Honda

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

Post by Godzillian »

Mr. Yellow wrote:
MandaSaurus wrote:Which explains a LOT as to how K:SI got made. Legendary and Warner Bros. didn't have to pay ANYBODY to make their movie, because it had NOTHING to do with the previous iterations of Kong. Also, it means that Bandai/Tamashii only needs Toho's permission to make Showa Kong toys, as ONLY Toho owns their version of Kong, as it has nothing to do with the 1933 version...
OK, here's one in regards to Showa Kong.

Toho's permission must only extend to Japan, or Asia in particular? Hence why no Showa Kong stuff officially released or shown outside of Asia (no toys, other merch or appearances in comics or video games).

Toho would need Universal, or whomever's permission to use Showa Kong in any form outside of Asia?

Didn't Toho get kongblocked when trying to use Kong, and then by extension Mechani-Kong in a later Godzilla movie?

On the subject of the latter, how does all of this affect Mechani-Kong, as well I suppose KKE version of Gorogsaurus and/or Giant Sea Serpent?
In the 90s Toho wanted to do another KKVG but backed down when they saw the legal trouble with the character and decided it wasn't worth getting involved with. When they moved onto mechani-kong they were afraid it would fringe on Kong so decided to go with a different script

Goro and the Sea Serpent are original Toho creations and can be used freely without legal issues
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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Looking around some more, I noticed the Wikipedia article on KK'76 actually cites a newspaper article from 1976 when the ruling that Kong was public domain was handed down. I've got a .PDF copy of the newspaper page now, but here's the (really short) article itself:

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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It was a novelization not a novel.
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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Shhh! The Octopus wrote:It was a novelization not a novel.
A novelization is a type of novel.

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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Shhh! The Octopus wrote:It was a novelization not a novel.
The important point as far as the courts were concerned was that the Lovelace novel was copyrighted first, and that copyright had not been properly renewed within the required 28 years. Back then, copyright was not automatic. Whichever work is copyrighted first is legally the originating work, and all other copyrighted works that follow are derivative of that work.

If this happened today, the fact it was adapted from an existing screenplay for a film that was in post-production set for release just three months later would matter and none of this would've happened. Universal would've lost.

But, that's not how the law worked in 1976. Back then, who filed what paperwork when and whether or not it was filed properly was EVERYTHING.

That's why Kong is public domain.

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Re: King Kong Tribute Thread (THE REAL KING KONG!)

Post by The Octopus »

Despite that DDL and RKO successfully sued the company behind Queen Kong stopping it's threatical release and threatened a $1.5 M lawsuit against Worldwide Entertainment forcing them to change the name of The New King Kong to A*p*e and put the tagine Not to be confused with King Kong on the poster and trailer. :lol:

Go figure.
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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Shhh! The Octopus wrote:Despite that DDL and RKO successfully sued the company behind Queen Kong stopping it's threatical release and threatened a $1.5 M lawsuit against Worldwide Entertainment forcing them to change the name of The New King Kong to A*p*e and put the tagine Not to be confused with King Kong on the poster and trailer. :lol:

Go figure.
A lot of IP lawsuits exist only to frighten people away with the specter of huge legal bills. If our system was more punitive toward wealthy entities that file lawsuits and end up losing, and each case was required to reach a precedent-setting judgment instead of allowing the parties to cop out with a settlement, you'd see a surprising increase in the amount of unlicensed works that the corporations would let go unmolested.
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Re: King Kong Tribute Thread (THE REAL KING KONG!)

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Here's that article in regards to the Queen Kong lawsuit.
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