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.