Authors: Steven Kent
The Ultimate History of Video Games: From Pong to Pokémon and Beyond—The Story Behind the Craze That Touched Our Lives and Changed the World (58 page)
You had to sneak into a character named Weird Ed’s room and steal his hamster. You would then run down to the kitchen undetected and put the hamster in the microwave oven, at which point the hamster would explode into a little charred mess complete with sound effects. Then you could hand the charred hamster back to Weird Ed.
That actually was one of the only ways you could die in
Maniac Mansion.
If you pulled off that trick, you would end up as a little tombstone, and then you could move around the game as an invisible ghost-like character.It was just one of those nice little tricks that was buried in the game, and it was buried so well that they never found it until the first 250,000 copies had sold. When we did the second run, they made us change it.
—Mike Meyers, former product manager, Jaleco
As the holiday season approached, Nintendo could not ship in enough inventory to satisfy demands. Orders had been placed for 8.4 million NES consoles. Nintendo was only able to deliver 7 million. Because of the cost of making cartridges, Nintendo executives generally preferred multiple small manufacturing runs and making customers wait for games rather than risking overstocking inventories. This policy made shortages of top products a Nintendo holiday tradition.
Blockbuster releases also generally resulted in holiday shortages. In 1988, Nintendo released two blockbuster games in time for the holidays—the sequels to
Super Mario Bros.
and
The Legend of Zelda.
Excitement over the games grew so feverish that some Nintendo outlets took pre-orders. Both games had fundamental changes in their game play that made them unlike their predecessors. Although both games were good, neither lived up to expectations.
Like
The Legend of Zelda, Zelda II: The Adventure of Link
was an adventure game in which players led a young elf through a sprawling kingdom, exploring dungeons and fighting monsters. The game had many of the same monsters and supposedly took place in the same fantasy world as
The Legend of Zelda
, but the earlier game was exploration-based while
The Adventure of Link
focused more on combat.
The second sequel of the 1988 holiday season,
Super Mario Bros. 2
, was even more dissimilar to its predecessor. The only thing it shared with the original
Super Mario Bros.
were the lead characters, a few clever puzzles, and the same cute, innocuous sense of humor. The play mechanics of
Super Mario Bros. 2
were entirely new.
Super Mario Bros.
was a fast-moving game of exploration and precision jumping, in which players always raced against the clock. Much of the action occurred in acrophobic environments, where players sped across tall mushrooms or dangling steel girders. There was always a sense of vertigo, as
one misstep could cost Mario a life.
Super Mario Bros. 2
, on the other hand, took place at a slower and more plodding pace. Players located puzzles in the original
Super Mario Bros.
by jumping and bumping walls and blocks as they ran. Many puzzles in the sequel were hidden under clumps of grass. To find them, players had to pull every plant they passed.
Part of the reason the
Super Mario Bros. 2
bore so little resemblance to the original
Super Mario Bros.
was because it was not a true sequel. The game that was released in the United States as
Super Mario Bros. 2
was originally released in Japan as
Doki Doki Panic
.
Mario 2
was a gap filler. In Japan it was called
Doki Doki Panic
and it had some little Arabian guy. They just took the Arabian guy out and replaced him with Mario, and I think there were some changes to the girl to make her more like a Mario-ish heroine; but they only made very limited changes.—Howard Phillips
Shigeru Miyamoto, the man who created
Super Mario Bros.
, had little to do with the making of
Doki Doki Panic.
He did create a sequel that was released in Japan. Though Miyamoto’s sequel was similar to the original
Super Mario Bros.
, it was determined that the game had elements that might irritate American consumers.
There were two things in the Japanese
Super Mario 2
that made it not so palatable. At the time, I didn’t really know if Miyamoto had driven these changes or not, and it made me question whether he just lucked out to begin with.In the Japanese
Super Mario 2
, the very first thing that happens is that this mushroom pops out of a block and you think, “Oh, great, go grab it.” It’s a poison mushroom. In the first Mario game, all the things that popped out were good. They added this new jeopardy that when you were looking for something surprising and good, it might be surprisingly bad.The other thing he did was add in this driving rain. It came at a 45-degree angle so that Mario would be cruising along, and this wind would pick up and it varied with time. Sometimes it would blow slow and you’d move pretty quickly, and then sometimes it’d blow hard. You had to time your jumps to
the wind, but again, the winds were unpredictable and you had to guess. Those two things were classically un-Miyamoto, in that [they were] random and out of the player’s control.Maybe Miyamoto was depressed at the time he made
Mario 2
, or maybe he delegated somebody else to do some level design, and that person added a couple of developments.—Howard Phillips
Though it was quite different from the original
Super Mario Bros., Super Mario Bros. 2
was a major hit. Nintendo sold 6.76 million copies of the game worldwide.
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In fairness,
Donkey Kong 3
was not as impressive a game as the original
Donkey Kong
or
Donkey Kong Junior.
The earlier games featured unique challenges;
Donkey Kong 3
was little more than a clever adaptation of
Space Invaders.
Lack of innovation may have hurt the game’s sales.
*
In 1998, the help center held a small party to celebrate call number 64 million.
*
Nintendo refuses to specify the amount.
*
Glass Joe, the first opponent in the game, looked a bit more like Phillips and has the same hair color and length. It is possible that Arakawa was mistaken.
*
Ten years after Sega released its 3D Glasses, a number of smaller companies released products that utilized the identical technology to enhance PC games.
The Legal GameA “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
—United States Congress
1
All computer software exists as electrical pulses, yet Congress explicitly extended copyright protection to computer software as a literary work.
2—Judge Fern M. Smith, District Court, North District of California
If you stack the notes from my appearances in court and measure them end-to-end, that stack would probably be about two feet long. If you take all of the paperwork from all of Magnavox’s cases, it would be at least 200 feet, enough to fill two storage rooms in a private storage facility in Chicago.
—Ralph Baer, former manager, Equipment Design Division, Sanders Associates
Video game companies began taking each other to court before the term
video game
was even coined. Magnavox, the first console manufacturer, sued Atari, the first commercially successful arcade company, as early as 1973, coming the year after the introduction of
Pong.
At the time, people did not know whether to call
Pong
a “computer game” or a “television game.”
There have been hundreds of legal actions throughout the history of video games. Many of these actions, such as Magnavox’s protection of its technology patents, have resulted in insignificant trials or out-of-court settlements. Other cases have had important ramifications for future copyright protection and antitrust actions.
In 1984, Data East released a game titled
Karate Champ.
Though it was not the first two-player fighting game,
*
it was the first two-player martial arts tournament game and the progenitor of a genre that in the early 1990s would become extremely popular. In
Karate Champ
, players controlled a martial artist as he battled computer-controlled fighters in tournament-style combat. (
Karate Champ
had two-player simultaneous action as well.) It featured several realistic blocks, kicks, and punches and had large, relatively human-looking characters. The game was a modest hit in the arcades.
In October 1985, Data East released a home version of
Karate Champ
for the Commodore 64 computer. One month later, the British company System III released a similar game titled
International Karate.
When California-based Epyx, Inc., licensed the game and released it as
World Karate Championship
for the Commodore 64 in April 1986, Data East took Epyx to court, claiming that the “overall appearance, compilation, and sequence of the audio visual display of the video game
World Karate Championship
infringed upon
Karate Champ.
” Data East also claimed that
World Karate Championship
infringed upon its trademark and trade dress. The case went before Judge William A. Ingram of the United States District Court for the Northern District of California.
Upon looking at both games, Ingram found several areas of similarity to support Data East’s claim:
Each game has fourteen moves.
Each game has a two-player option.
Each game has a one-player option.
Each game has forward and backward somersault moves and about-face moves.
Each game has a squatting reverse punch wherein the heel is not on the ground.
Each game has an upper-lunge punch.
Each game has a back-foot sweep.
Each game has a jumping sidekick.
Each game has a low kick.
Each game has a walk-backwards position.
Each game has changing background scenes.
Each game has 30-second countdown rounds.
Each game uses one referee.
In each game the referee says, “begin,” “stop,” “white,” “red,” which is depicted by a cartoon-style speech balloon.
Each game has a provision for 100 bonus points per remaining second.
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World Karate Championship
borrowed other elements from
Karate Champ.
Both games featured fighters in either red or white karate
gi
s, and both featured bonus rounds in which players earned extra points by breaking bricks or dodging dangers. The court recognized that as both games depicted karate tournaments, some duplication was inevitable. Karate in general, and karate tournaments in particular, included standard features such as karate
gi
s, certain moves, and referees. Matches at karate tournaments involve two fighters earning points by performing combat maneuvers. The fights are scored by referees who award certain points for various moves. In his decision, Judge Ingram also noted that both games were made for the Commodore computer and that various constraints were inherent in the use of that computer. Even granting these constraints, the judge found too many similarities to ignore.
The district court found that except for the graphic quality of Epyx’s expressions, part of the scoreboard, the referee’s physical appearance, and minor particulars in the “bonus phases,” Data East’s and Epyx’s games are qualitatively identical.
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Based on these findings, Judge Ingram ordered Epyx to recall
World Karate Championship
and
International Karate.
His decision was overturned, however, by Judge Stephen S. Trott of the United States Court of Appeals, Ninth Circuit.
To establish copyright infringement, Data East must prove ownership of a valid copyright and “copying” by Epyx of the copyrighted work. It is undisputed that Data East is the registered copyright owner of the audio-visual work for each version of “Karate Champ.” Thus we need only determine whether Epyx copied “Karate Champ.” This sounds simple and straightforward. It is not.
5According to Trott, there was no direct evidence that System III, the original creator of
International Karate
, had access to the Commodore computer version of
Karate Champ.
He listed Judge Ingram’s 15 similarities and identified them as inherent to the sport of karate. According to Trott, “karate is not susceptible of [sic] a wholly fanciful presentation.”
*
In his decision, the judge stated that the only parts of the game that could be protected by a copyright were the areas in which Data East made creative contributions—namely the scoreboard and the background scenes. These, however, were the areas in which
Karate Champ
and
World Karate Championship
were most different.Based upon these two features, a discerning 17.5-year-old boy could not regard the works as substantially similar. Accordingly, Data East’s copyright was not infringed on this basis either.
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