- [Tim] I don't remember
my dad confirming to me that it was named after
him until much later. And even then, he was very reluctant to do it. (Kirby music) - This is the story of
John Joseph Kirby Jr. An American attorney, whose surname has no doubt
already caught your attention as he shares it with, well, Nintendo's roundest protagonist. And although you might
assume that is a coincidence, it's not. John sadly passed away last October. And at his funeral, a video was played in which Howard Lincoln, the former chairman at Nintendo of America, spoke of his great
admiration for Mr. Kirby, who he considered a close friend. This was accompanied by a written message from Shigeru Miyamoto, which described how they
met back in the early 80's and how John had been one of the reasons why Nintendo would go on to call Kirby, Kirby. So how did that happen? How did these two worlds collide? I recently spoke with
John Kirby's two sons, John and Tim, to find out. - [John] Let's put it this way. All my classmates knew
that my dad represented and saved the day for Donkey Kong. - In 1982, Nintendo was not quite the
household name it is today, not yet at least. The company was right on the brink of releasing the Famicom in Japan and later the NES in
North America and Europe. But to fully understand this story, you need to know that
that hasn't happened yet. Nintendo, at least in terms of its
video game potential, is just getting started. For years, this Japanese company had been trying to break into
the North American market and it had finally managed
it just one year prior, thanks to an arcade game
by first-time designer, Shigeru Miyamoto. A game that was proving extremely popular, a game called Donkey Kong. (Donkey Kong sounds) So we're at this crucial
moment in Nintendo's history in which it's just starting to
establish itself as a contender in an international
entertainment industry, when it's hit with a sucker punch. On the 29th of June, 1982, Nintendo was sued by Universal Studios for trademark infringement. The claim being, that Donkey Kong was actually a rip off of the studio's own property, King Kong. John Kirby, well he was hired as the
lawyer to represent them in this battle. - At the time, Nintendo really was this very
small sort of unknown company. And they obviously had the resources to pay a well regarded law firm, but it was definitely a
David and Goliath story. - So what exactly was he up against here? Well, if you boil it all down, there are really two key
arguments being made by Universal. The first is that a punter like you or I could too easily confuse
the name Donkey Kong with the name King Kong and that Nintendo was unfairly profiting from this association. I mean, let me tell you by the way, as someone who's needed
to write a video script that includes a good
helping of both names, they can be surprisingly easy to mix up. And actually, when asked
about the origin of the name, Miyamoto has said in the past, "I've always thought
the gorillas were Kongs. That's why I wanted to
name it 'something' Kong." And why does he think
all gorillas are Kongs? Why do most of us make that connection? Well, the origin story is out there, according to correspondence
between Merian C Cooper, the original creator of King
Kong and Douglas Burden, a fellow filmmaker and
adventurer friend of his, Cooper had, and I quote, "especially liked the strength
of words beginning with K." And so it was during a conversation
between the two of them that he had settled on the name Kong for his monstrous gorilla. And so, yes, the original source for the
name Kong is quite indisputable. Although it's worth noting
that it's not Merian C. Cooper who's trying to sue Nintendo here. In fact, he died several years before
this lawsuit would happen. It's Universal Studios. Cooper himself had faced
his own legal battles during his lifetime with movie studios over who owned the rights to King Kong. In another letter to
his friend, he'd write, "They'd make me sorry I
ever invented the beast, if I weren't so fond of him." His son, Richard Cooper, would eventually sell
the rights to King Kong to Universal Studios in 1976. Alright, so that's the
first problem for Nintendo, that the name Kong might be an issue. The other argument that
Universal were making is that the plot of Donkey Kong, in which a giant ape kidnaps a woman, was also infringing on the
storyline of King Kong. But is that true? There are certainly some
obvious similarities here. The two Kongs, the damsels in distress, the "would-be" heroes trying to save them, but Mario, or Jumpman, as he was originally known, was a moustachioed carpenter hurdling his way through
a construction site to save his girl. While in the original movie, we've got the rugged Jack Driscoll, First Mate of The Venture. And the giant ape's demise is much grander than the one portrayed in
Nintendo's arcade games. He's brought down by fighter pilots atop the Empire State building. Mr. Kirby was very keen
to show these differences to the judge in person, and so requested an arcade
cabinet be brought into the court and the game played in front of him. - [John] I almost was called upon to play the stand up Donkey Kong game in court, but luckily they... they got one of their pros. - This proved effective,
with the judge stating that, at best, Donkey Kong is
a parody of King Kong, noting the differences between
the two apes in particular. Whereas King Kong was, and I quote here, "A ferocious gorilla in
quest of a beautiful woman." Donkey Kong by comparison was, and this is another quote, "Farcical, childlike and non-sexual." I'm very sure that there are
certain corners of the internet that might disagree with that last point but let's not linger too
long on that thought. ♪ I shower you with coconut cream pies. ♪ - You see, Mr. Kirby wasn't finished. Not only did he argue
that the two storylines were in fact different, he also had his own curve ball to throw. Universal Studios, he claimed, didn't even own the rights
to the name King Kong or the character in the
first place and better yet, the movie studio itself had proven this in an American court of law just a few years beforehand. - [John] I can't remember
which official at Nintendo would say this, but they would say, "First there was God,
then there was Buddha, then there was Mr. Kirby." - He directed the court to
a legal dispute in 1975, a year before Universal
purchased the rights from Cooper's son, in which the studio had argued that a novelization
of the King Kong story had now entered into the public domain, which meant it could produce its own movie based on that novel and nothing else without paying a penny to
either the Cooper estate or RKO pictures, the studio that'd produced
the original film in 1933. This led to a good deal of back and forth over who exactly owned which parts of the King Kong trademark, and that remains somewhat
muddled even to this day. But let me read you something
from one of the judges, once the Universal versus Nintendo case reached the court of appeals. It'll give you some idea of just how compelling Mr.
Kirby's argument must have been. "Universal's assertions in court were based not on any good
faith belief in their truth, but on the mistaken belief that it could use the
courts to turn a profit." Ouch. In the end, Nintendo emerged
unscathed from this lawsuit and Universal Studios were
in fact required to pay almost $2 million in legal fees, photocopying expenses, costs incurred creating graphs and charts and lost revenues. I imagine that's just
standard legal language, but can I just say that
some of those things sound more expensive than the others. And to thank Mr. Kirby for his work, and they were thankful, Nintendo gifted him a 27 foot sailboat named the Donkey Kong, along with the rights to use that name on any vessel of his
choosing in the future, that being a nod to the dispute itself. - [Tim] We still have it. It actually played a
big role in my wedding with a big flag. I think it was our wedding hashtag, which was a play on Kirby's dreamland, it was Kirby's Dreamgirl. - Mr. Kirby would continue
to represent Nintendo in the years to come and
according to his two sons, this meant that they
were rarely discouraged from playing video games as they grew up, although it was usually preferable if those games were at least Nintendo. But what's it like as a kid, speaking to your friends, going to school, when your dad actually does
know the people at Nintendo, when he saved them, in fact? Well, I asked Tim, who by the way mains Kirby
in Super Smash Brothers, I'd like to point out, if he had any particular
memories from his childhood. - [Tim] Growing up, we were very much a Nintendo household. Shigeru Miyamoto actually came over and had dinner at our house
a few different times. One time, this is sort of embarrassing, but I was a big RPG fan, and my favourite game at the
time was Final Fantasy Tactics. And he asked if he could
watch me play for a while. And he sat there, I think I must've been in
like sixth or seventh grade, and watched me just play
the PlayStation for an hour. - As for the link between John Kirby and Nintendo's spherical boy, both sons mentioned that their
father rarely liked to brag about the connection, despite their best
efforts to make him do so. So here's a quote from
Miyamoto when asked about it by Game Informer in 2011. "Yes, it is a fact that I met John Kirby and got to know him
when he was defending us during the lawsuit against Universal. And it is a fact, that the Kirby name was partially chosen in connection to him, but it wasn't named after him. Instead, we had a list of
names that we were looking at and Kirby was one the names on the list. As we were going through the list and narrowing down the selections, we saw that Kirby was there and we thought John Kirby's name is Kirby, and started thinking that if
those two had a connection, that would be kind of funny." And I mean, it is kind of funny. He's not wrong about that, but before I wrap this video up, I want to just go on one small
tangent if you'll allow me. And that is to say that, although this video has
focused on John Kirby's work with Nintendo in the early to mid 1980s, it actually does him
something of a disservice to only talk about his career through the lens of that
one particular case. In the 1960s, for example, as a 22 year old summer intern
at the justice department, Mr. Kirby uncovered some of
the very first documented proof that African-American
citizens were being stopped from registering to vote in Mississippi. He'd end up showing
these findings in person to the attorney general,
one Mr. Robert Kennedy, and that evidence would
go on to play a role in establishing the
voting rights act of 1965. In the summer of 1963, he was involved in school desegregation as one of the chaperones to
the very first black student to enrol in a white Alabama public school, the six year old Sonnie Hereford. And after the Kent
State Massacre of 1970, he helped write the report commissioned by the president's office, which described the
shootings as unnecessary, unwarranted and inexcusable, which in turn, infuriated the Nixon presidency. That is to say that his later years may have seen him working
for private companies like Nintendo, but early on in his career, Mr. Kirby was a champion of civil rights. Worth a mention, I think. You know, working on this video has got me thinking about
writing my own King Kong story, but one for a more modern,
accepting audience, because yes, King Kong is a large gorilla, but let me pose this question to you. Why does that have to mean
he can't also be our friend? And so, yeah, I've been playing around with a few ideas, although it does turn
out that story writing and world-building is
actually quite involved and requires, like, a lot of organisation. Which is why I'd like to tell
you about our latest sponsor, Campfire Pro. Campfire Pro is a writing tool kit that lets you keep track
of everything, basically. For example, for each of your characters, you may want to have a sheet in which you show their
personality traits, their physical attributes. Note the backing story
so you can reference that as you work. Sorry, just one second. Alright. Yeah, no. I... So that's actually
a cease and desist. So I'm going to quickly just
change the name on that one to, let's try, King Kang. Right. So as I was saying, that's... Yeah, no. That is another one. I tell you what, I'm just going to use the footage that Campfire Pro sent
over to me themselves because I'm sure that'll
have nothing to do with any kind of existing trademark. As well as managing all
of your various characters and how they interact, Campfire lets you hammer
together a timeline and then link those characters to plot points their actually involved in. The World Building Pack expands upon this, allowing you to organise
things like items, languages, religions, whatever your world consists of. Maybe it has magic. Well, this is where you'd
keep track of all it spells. If that sounds like
something you'd like to try, Campfire Pro is free to
use until the end of April. Just use this link which you can also find in our video description. And normally, it's a one-time purchase
of $49 and 99 cents. Thank you so much for watching. And as ever, a huge thank you to our
patrons for supporting this work directly. We'll see you in a couple of weeks. (Kirby music)
