King Kong Tribute Thread (THE REAL KING KONG!)

[Pkmatrix]

Never mind, apparently King Kong first appeared in the original film's novelization, published on 27 December 1932. Furthermore, the novel's copyright was not renewed after 28 years (as was required at the time), so it lapsed into the public domain on 1 January 1961. Technically, the character has been open season for 58 years and no rush to take advantage has happened. So yeah, you're right.

Yep, Kong's been public domain for a pretty long time now. There's been a handful of attempts to take advantage of that (Kong: Skull Island partly exists for this reason), but not as many as you'd think.

Even if there was, pretty bold to assume that Disney's not gonna have copyright terms extended by another 50-100 years. They've done it before, they'll do it again.

No, if it was going to happen it would've happened in 2017 or 2018. There's too much big money opposed to copyright extensions now, forces and huge corporations that didn't exist in the 1990s when it was done last time.

Plus, Disney itself doesn't want copyrights extended anymore either, because they've finally realized they'll be able to take their rivals' IP and there won't be anything they can do about it. After all, it's only 15 more years until Superman and Batman become public domain, just in time for Disney to introduce them to the MCU...

[GodzillaFan1990's]

Now I'm just picturing the idea of an Disney adaption of King Kong. LMAO.

Tell me guys how would that go down based on its usual formula? I think we can take a note from Beauty and the Beast/King Kong (2005) as misunderstood being and it probably ending with Kong living at the end and probably being brought to an animal preserve so Ann can see him everyday or brought back to Skull Island with the message/theme of "That's where he belongs".

[Pkmatrix]

Now I'm just picturing the idea of an Disney adaption of King Kong. LMAO.

Tell me guys how would that go down based on its usual formula? I think we can take a note from Beauty and the Beast/King Kong (2005) as misunderstood being and it probably ending with Kong living at the end and probably being brought to an animal preserve so Ann can see him everyday or brought back to Skull Island with the message/theme of "That's where he belongs".

Hah!

If they went that route, I could see it ending up very similar to Disney's Mighty Joe Young remake.

Fun Fact: So writing this post it occurred to me I had no clue how Disney had been able to even DO a Mighty Joe Young remake, as I thought all of RKO's assets were by that point owned by Turner Entertainment. It turns out RKO Pictures STILL EXISTED (AND STILL EXISTS TODAY) and STILL OWNS the actual copyright on Mighty Joe Young - the 1998 movie was an RKO/Disney co-production. Turner owned (and now AT&T/WarnerMedia owns) the distribution rights on the original film.

Which sort of begs the question as to why RKO hasn't tried having another Mighty Joe Young film made...

[johnboy3434]

Yep, Kong's been public domain for a pretty long time now. There's been a handful of attempts to take advantage of that (Kong: Skull Island partly exists for this reason), but not as many as you'd think.

As far as theatrical films go, I can only find one instance of someone unilaterally taking advantage of the Kong character's status, and they were only able to partially pull it off. In 1976, with anticipation building toward the John Guillermin remake, a joint American/South Korean venture quickly produced a low-budget film titled King Kong's Great Counterattack, directed by Paul Leder. The 36-foot ape in question is referred to repeatedly as "King Kong", ostensibly in jest, but no other name is given to it besides that, so the implication is clear.

It premiered in South Korea in July of that year under the aforementioned title. When it came time for the American release, it was going to be titled The New King Kong, but there were various legal threats made over that, public domain or not. Eventually, it was released in America as A.P.E. (an acronym for "Attacking Primate Monster", which is the stupidest goddamn thing I've ever heard). Having now watched it, I can confirm that it's a titanic piece of crap, but you can get it on 3D Blu-ray if you want. Technically speaking, your theatrical Kong collection isn't complete without it.

So yeah, there's only one "unofficial" Kong film that actually made it to American theaters. Everything else was done with at least some form of cooperation from the various rightsholders.

[LSD Jellyfish]

I just want to say it`s still impressive to me today how one of the oldest films is also one of the best films of all time and is timeless. I could watch the original film now and still be entertained and enjoy it.

[The Octopus]

(an acronym for "Attacking Primate Monster", which is the stupidest goddamn thing I've ever heard).

I heard that was bs. What I read was that when they had to change the name of the film from this


they came up with Ape. But they stylized it as the M.A.S.H wordmark because the film was set in Korea and at that time M.A.S.H was a hugely popular show. That M.A.S.H wordmark was so popular everyone was wearing it on T-shirts.


So thats why they stylized it as an acronym.

[SoggyNoodles2016]

are we all going to ignore A*P*E's biggest lasting influence?



Pure beauty.

[Kiryu2012]

Kong's public domain? But isn't the character mostly owned by Universal?

[GodzillaFan1990's]

Kong's public domain? But isn't the character mostly owned by Universal?

All I can really say is...The rights are kinda complicated to say in the least...

[johnboy3434]

Kong's public domain? But isn't the character mostly owned by Universal?

The character as depicted in the original film's novelization (his first appearance) is public domain due to that work's copyright expiring, but Universal most likely has the trademark on the character, which would greatly limit his use outside their involvement. It's not impossible to use the character in works without Universal's approval, but the more high-profile the work, the greater the risk of a lawsuit becomes. As such, most people will avoid using the character, even if it would be perfectly legal, simply to avoid the hassle.

[Terasawa]

King Kong, the character, is not public domain.

There were two lawsuits that determined this. The second one is more important, but the first is worth noting because the judge ruled that the estate of Merian C. Cooper (Kong's creator, who directed the film for R.K.O. in 1933) had retained all rights to the character except for the two R.K.O. films and the 1932 novelization, which entered public domain when the copyright was not renewed in 1960. Because the novelization belonged the public, this would have allowed Universal to make a film based on the novel (and not using any elements exclusive to the R.K.O. films), which they ultimately didn't do. Cooper would in turn sell all but publishing/print media rights to Universal.

The second case occurred in 1982. Universal sued Nintendo over "Donkey Kong," which they claimed infringed on their rights to the Kong character and its name (which is a trademark, not a copyright). This is from where the confusion in this thread stems. The court ruled that there was no infringement, in part because the characters could not be confused, but also because it deemed that Universal did not exclusively control the rights to King Kong. The Wikipedia article breaks it down like this:

• RKO owned the rights to the original film and its sequel. (Note: These films are now owned by Warner Bros. via Turner Entertainment.)
• The Dino De Laurentiis company (DDL) owned the rights to the 1976 remake. (Note: U.S. distribution rights to Dino's 1976 movie are held by Paramount.)
• Richard Cooper owned worldwide book and periodical publishing rights.
• "Universal thus owns only those rights in the King Kong name and character that RKO, Cooper, or DDL do not own."
• The 1932 novelization is still and will always be public domain.

The 1982 ruling didn't mean that Universal no longer had any rights to the character, just that the infringement they claimed Nintendo had committed did not apply as infringement of rights Universal owned.

In summary, Universal holds the character rights. They still hold all the cards when it comes to licensing the character for future films, unless one were to base a film solely on the 1932 novelization. Universal likewise doesn't hold the rights to either 1933 film, either DDL film, or the publishing rights controlled by the Cooper estate, which is why books like Anthony Browne's illustrated version of the story can be published without Universal seeing a dime.

I believe the second case also determined that Universal does not have a trademark for the name "King Kong," for various reasons. In fact, it seems that no one has a trademark on this name. This is partly why Nintendo was in the clear to use "Kong" in their Donkey Kong series and characters. I assume it would be in anyone's rights to make a character, named King Kong, that was entirely different from the giant ape for which Universal controls character rights.

Edit: Clarification on the rights of the Toho Kong films, for those interested:

Hollywood producer John Beck paid R.K.O. for the rights to the Kong character. At that time, Cooper was not recognized as the rightsholder; as noted, R.K.O. had produced the first two Kong films. Beck brought the project to Toho, who produced the film with Beck's cooperation. Beck got worldwide distribution rights except for Japan and east Asia (which Toho controlled the rights for). Beck was the one who produced the Americanization of the film. After his English version was completed, he sold his rights (including the film itself) to Universal (then "Universal-International"), which released the completed Beck version in 1963 and which still holds distribution rights today, except for those territories in which Toho does.

The Japanese version of King Kong Escapes opens with a disclaimer that King Kong was used with permission of R.K.O. (again, at the time recognized as the character's rightsholder). The film was a co-production with Rankin/Bass, which had just made the cartoon series the movie was based on. I'm pretty sure R/B's deal with Toho was similar to Beck's in that Toho retained Asian distribution rights and rights in several other territories while R/B got at least U.S. rights. They produced an English version of the film. I'm not sure if this Americanization was done with Universal's cooperation or not, but the film was eventually distributed by Universal and it still holds the rights today.

It's coincidental that Kong's present day rightsholder, Universal, also has certain rights to the two Toho films.

Speaking of coincidences, or lack thereof: Because Toho's two Kong films were produced with American involvement, including that of R.K.O., I don't believe they ever had the option to make any more than the two films they did make with the character. However, obviously I haven't seen the original contracts with all involved parties, but I just don't think it was a coincidence that they only made two films using the character, with both films having been produced after the American side of the productions had licensed character rights from R.K.O. If Toho had planned to make any more Kong films they would have had to license the big guy from R.K.O. (until 1976) or Universal (since). We know for a fact this is what squashed Toho's plans for a Heisei era update.

[johnboy3434]

snip

True, but if a character first appears in a work that is now public domain, and (as you posited) no one owns a trademark on the character, then how exactly is the character not in the public domain? I would think a trademark must still exist, as at this point that's the only thing that can provide a widespread restriction on what other parties can do with the character. Without a trademark, you or I would be in the clear to make our own Kong film without asking anybody for anything so long as we avoided concepts unique to still-copyrighted Kong works. If we could do that, then that's pretty much the definition of a character being in the public domain.

[Terasawa]

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.

I would think a trademark must still exist

The 1982 ruling in Universal City Studios, Inc. v. Nintendo Co., Ltd. stated that Universal did not (and knowingly so) hold the trademark to "King Kong." Wikipedia states that the 1976 ruling also determined that there is no trademark on "King Kong."

The courts ruled that trademark was not among the rights Cooper had sold to Universal, indicating that "Cooper plainly did not obtain any trademark rights in his judgment against RKO, since the California district court specifically found that King Kong had no secondary meaning."[55] While they had a majority of the rights, they did not outright own the King Kong name and character.[58] The courts ruling noted that the name, title, and character of Kong no longer signified a single source of origin so exclusive trademark rights were impossible.[59]

If you click the link to citation 59, you can read the court text which says, in part:

Nintendo also argues that because King Kong has become part of the English Language and because of the universality of the King Kong theme, the term cannot be a trademark. The former argument is invalid, since even words that are in the public domain may possess trademark significance. Frederick Warne, supra, 481 F. Supp. at 1196. See also Superman, supra, at 246-47 (accepting Superman as a trademark); Callmann, supra, § 18.01 at 18-2. As to the latter argument, the fact that Universal or even Merian Cooper did not create King Kong, does not prevent King Kong from being invested with secondary meaning and thus becoming a trademark. See Wyatt Earp Enterprises, Inc. v. Sackman, Inc., 157 F. Supp. 621, 623-24 (S.D.N. Y.1958) (actual, historical person's name can be trademarked). On the other hand, the commonness of the King Kong name and of gorilla imagery in general supports our conclusion above that King Kong lacks secondary meaning. See id. at 624 ("or it may be that a nonfanciful, real name is such a part of the national fabric that all have a measurable interest in its use, to the extent that it acquires no secondary meaning.").

I'm not a lawyer. But it sounds to me from the last quote, referencing another lawsuit, that because the name "King Kong" evokes only images of the giant ape character, and as such is in such great usage, that no entity can claim that name is their trademark. In essence, the name King Kong is the public's to use, but the name is separate from the character is separate from the films is separate from the novelization. Make sense?

Edit: Cleaned up formatting a bit.

[johnboy3434]

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.

[Terasawa]

I simply don't understand exactly what the "rights" to the Kong character consist of if it's neither copyright nor trademark.

Wikipedia:

However, on December 6, 1976, Judge Real made a subsequent ruling, which held that all the rights in the name, character, and story of King Kong (outside of the original film and its sequel) belonged to Merian C. Cooper's estate. This ruling, which became known as the "Cooper judgment", expressly stated that it would not change the previous ruling that publishing rights of the novel and serialization were in the public domain. It was a huge victory that affirmed the position Merian C. Cooper had maintained for years.[54]

Sounds like in this case the "character rights" are tied to the general King Kong story. In the absence of further details, and without going through the archived court files or reading the book cited, it sounds like there was significant proof in 1976 that Cooper had the original story (an outline? a document?) to which the bulk of Kong rights can be associated.

Anyway the U.S. legal system twice found that there's significant evidence that rights to the King Kong character are copyrighted by (now) Universal. I'm sure they did their due diligence. We can't assume there has to be a missing piece to the puzzle or a mistaken ruling because we're not aware of all the details the courts were. Whatever those details may be, we know that the courts found there was no trademark (meaning neither Universal nor anyone else may collect solely on the Kong name) and that Universal holds the copyright except where noted (meaning the character itself is not public domain).

[SoggyNoodles2016]

To throw my 2 cents in the ring as I understand them (and more or less repeat a comment from the SHMA fourm)

the reason Universal has the rights is they bought the rights to make KING Kong films. The rights to the story of King Kong (as written in the novel Cooper published before the film) is public domain, as well as the name Kong, which is why he hasn't been named King Kong yet in the Monsterverse. The other films are owned by their respective filmmakers (Paramount, RKO or whoever bought it) and are allowed as legal adaptations of the public domain story. KSI and GVK exist because it's a adaption of that public domain story and character, with the OK from Universal after a brief legal dispute everyone forgot about.

[The Octopus]

Art Adams was trying to so some King Kong projects fro Dark Horse back in the day and he said

Well we talked about that. The rights were a horrible mess. Dark Horse couldn't find a way to do it. Someone held rights for the music, someone for the movie, someone for the story, and were ready to sue each other whenever anyone wanted to do anything with it.

[Mr. Yellow]

Would’ve been amazing to have Godzilla, Kong AND Gamera under the same roof.

Anyone know if Trendmasters tried to get Kong rights also?

[johnboy3434]

Well, I guess the exact nature of Universal's rights to the Kong character itself will just remain a mystery to me until I summon the patience necessary to read through all the legal documents myself, since Wikipedia's summary just brings more questions to my mind.

[Mr. Yellow]

I wouldn’t bother...countless lawyers have tried to make sense of it and it’s too complicated.