Tuesday, October 29, 2013

Mysteries of History: King Kong, America’s Monster, Turns 80

Mysteries of History: King Kong, America’s Monster, Turns 80
Written by Scott M. Cooper

In 1929, Merian C. Cooper spent a few days talking with W. Douglas Burden, a well known naturalist and explorer of the American Museum of Natural History. Burden spoke of the exploration he just returned from, in the Far East, where he was studying the largest lizard known to man at that time, the Komodo dragon.  While the story unfolded from Burden’s voice, Cooper changed the dragon to a 40 to 50 foot tall ape, which came from an isolated island (Skull Island) and would later terrorize New York City.

Merian Cooper, 1893 - 1973
Merian Cooper was very fond of strong hard sounding words that started with the letter "K". Some of his favorite words were Komodo, Kodiak, and Kodak. When Cooper was envisioning his giant terror gorilla idea, he wanted to capture a real gorilla from the Congo and have it fight a real Komodo Dragon on Komodo Island. (This scenario would eventually evolve into Kong's battle with the Tyrannosaur on Skull Island when the film was produced a few years later at RKO). It was this phrase along with Komodo and C(K)ongo (and his overall love for hard sounding K words) that gave him the idea to name the giant ape Kong. He loved the name as it had a "mysterious sound" to it.

When Cooper arrived at RKO and wrote the first draft of the story, it was simply referred to as "The Beast." RKO executives were unimpressed with the bland title. David O. Selznick, the famous movie producer and director, suggested "Jungle Beast" as the film's new title. This time Cooper was unimpressed and wanted to name the film after the main character. He stated he liked the mysterious word of Kong's name and that the film should carry the name of the leading mysterious, romantic, savage creature of the story, as with Dracula and Frankenstein. RKO sent a memo to Cooper suggesting the titles "Kong: King of Beasts," "Kong: The Jungle King," and "Kong: The Jungle Beast," which combined his and Selznick's proposed title. As time went on, Cooper would eventually name the story simply "Kong" while James Ashmore Creelman and  Ruth Rose, two of Cooper’s staff writers, was writing the final draft of the screenplay, featuring Fay Wray as Ann Darrow, Bruce Cabot as Jack Driscoll and Robert Armstrong as Carl Denham, and then on March 2, 1933 King Kong opened in the Big Apple with spirited reviews. Mr. Selznick thought that audiences would think that the film, with the one word title of Kong, would be mistaken as a documentary like Grass and Chang, which were one-word titled films that Cooper had earlier produced, he added the King to Kong's name to differentiate. RKO filed the copyright for the name "King Kong" on February 24, 1933.

In Kong’s first appearance in the motion picture King Kong (1933), he was a gigantic prehistoric ape, or as RKO’s publicity materials described him, “A prehistoric type of ape.”  While gorilla-like, he also had a vaguely humanoid appearance and at times walked upright in an anthropomorphic manner. Indeed, Carl Denham describes him as being “neither beast nor man”. Like most simians, Kong possesses semi-human intelligence and great physical strength. The ape’s size changes drastically throughout the course of the film. While creator Merian C. Cooper envisioned Kong as being 40 to 50 feet tall, animator Willis O’Brien and his crew built the models and sets scaling Kong to be only 18 feet tall on Skull Island, and rescaled to be 24 feet tall in New York. This did not deter Cooper from playing with the ape’s size as he directed the special effect sequences; by manipulating the sizes of the miniatures and the camera angles, he made Kong appear a lot larger than O’Brien wanted, even as large as 60 feet in some scenes. Concurrently, the Kong bust made for the film was built in scale with a 40-foot ape, while the full sized hand of Kong was built in scale with a 70 foot ape. Meanwhile, RKO's promotional materials listed King Kong’s official height as 50 feet. 

1933 King Kong Movie Poster
In the 1933 film, Kong was only eighteen inches tall, with a pose-able body. The model was covered in rabbit hair and was filmed one frame at a time, by stop-motion photography artist Willis O’Brien and his crew. This technique was used on miniature sets of a jungle and New York City. By the time Kong was filmed, stop-motion photography had been around for many years; combined with other techniques, such as rear projection and miniature projection, to place the actors in the shots with the ape, it was filmed in such a way not seen before in film.

Rear projection had been used before, but this was the first time a cellulose-acetate screen was used. Earlier efforts had used sand-blasted glass to achieve the effect, but this limited the size of the surface of the screen. The glass screen also had noticeable hot spots in the center of the projection and was a danger should it break during production. The cellulose screen was flexible and stretched over a frame like canvas. It also reduced the hot spot by fifty percent while giving better white highlights and intense blacks. Sidney Saunders, who invented the new screen, earned a special award from the Academy of Motion Picture Arts and Sciences for the scenes shot in Kong with this process.

One great example of miniature projection was the technique of allowing full-sized actors to appear on the miniature set. Jack Driscoll (Bruce Cabot) hides in a cave just below the top of a cliff. Then Kong reaches over the edge of the cliff to grope for him in the cave. Cabot was actually filmed earlier in a full sized cave, and then projected from the rear onto a small screen just beyond the mouth of the cave on the miniature set. As the modelers photographed each frame of Kong’s actions as they moved the film of Cabot ahead one frame at a time, giving the illusion of a small man hiding from an enormous ape. 

In addition to this technique, a number of full-sized props were used including an articulated eight foot long ape hand in which Ann Darrow (Fay Wray), was photographed and a gigantic head and chest which was used to show actors being crunched in Kong’s jaws. This footage was deleted from the film before its release in 1933 due to its graphic nature. 

Over the years the rear projection technique improved with the form of optical processing, using a blue screen behind actors to allow them to be matted into other footage that was used with Kong. Variations on these techniques were used in almost every monster film until the invention of computerized image processing in the 1990s.
1976 King Kong Movie Poster
In 1975, Producer Dino De Laurentiis paid RKO for the remake rights to King Kong. This resulted in the 1976 version of King Kong. This Kong was an upright walking anthropomorphic ape, appearing even more human-like than the original. Also like the original, this Kong had semi-human intelligence and vast strength. In the 1976 film, Kong was scaled to be 42 feet tall on Skull Island and rescaled to be 55 feet tall in New York. 10 years later, Dino De Laurentiis received permission from Universal Studios to do a sequel, King Kong Lives. Kong more or less had the same appearance and abilities; only he walked on his knuckles more often and was enlarged, being scaled to be 60 feet.

Universal Studios had planned to film a King Kong remake as far back as 1976. They finally followed through almost 30 years later, with a three-hour film directed by Peter Jackson. Jackson opted to make the ape a gigantic silverback gorilla without any anthropomorphic features. Kong looked and behaved more like a real gorilla: he had a large herbivore's belly, walked on his knuckles without any upright posture, and even beat his chest with his palms as opposed to clenched fists. In order to ground his Kong in realism, Jackson and the Weta Digital crew gave a name to his fictitious species, Megaprimatus Kong, which was said to have evolved from the Gigantopithecus. Kong was the last of his kind. He was portrayed in the film as being quite old with graying fur, and battle-worn with scars, wounds, and a crooked jaw from his many fights against rival creatures. He is the most dominant being on the island; the king of his world. Like his predecessors, he possesses considerable intelligence and great physical strength; he also appears far more nimble and agile. This ape was scaled to be only 25 feet tall on both Skull Island and in New York. Jackson describes the Kong character:
 "We assumed that Kong is the last surviving member of his species. He had a mother and a father and maybe brothers and sisters, but they’re dead. He’s the last of the huge gorillas that live on Skull Island and the last one when he goes...there will be no more. He’s a very lonely creature, absolutely solitary. It must be one of the loneliest existences you could ever possibly imagine. Every day, he has to battle for his survival against very formidable dinosaurs on the island, and it’s not easy for him. He’s carrying the scars of many former encounters with dinosaurs. I’m imagining he’s probably 100 to 120 years old by the time our story begins. And he has never felt a single bit of empathy for another living creature in his long life; it has been a brutal life that he’s lived."
Several differences exist in the novel from the completed film, as it reflects an earlier draft of the script that became the final shooting script. The novelization includes scenes from the screenplay that were cut from the completed movie, or were never shot altogether. These include the spider pit sequence, as well as a Styracosaurus attack, and Kong battling three-Triceratops. It also does not feature the character of Charlie, the ship's Chinese cook, but instead a different one named Lumpy, subsequently used in both the 1991 comic book version and the 2005 big-screen remake.

In 1933, Mystery magazine published a King Kong serial under the byline of Edgar Wallace. This is unrelated to the 1932 novel. The story was serialized into two parts that were published in the February 1933 and March 1933 issues of the magazine. That fall King Kong was serialized in the pulp magazine 'Boys Magazine'. 

King Kong's intellectual property status has been in question since his birth, featuring in numerous allegations and court battles. The rights to the character, Kong, have been split with not one single exclusive rights holder. Numerous parties have contested that various aspects are public domain material and therefore ineligible for trademark or copyright status.

When Cooper created King Kong, he assumed that he owned the character, which he had conceived in 1929. Cooper maintained that he had only licensed the character to RKO for the initial film and sequel but had otherwise owned his own creation. In 1935, Cooper began to feel something was wrong, when he was trying to get a Tarzan vs. King Kong project started for Pioneer Pictures. After David Selznick suggested the project to Cooper, a flurry of legal activity for over using the character followed. Pioneer Pictures became an independent company by the time to access the intellectual property that RKO felt were theirs was no longer automatic. This made Cooper pause as he realized, he might not have full control over the creation from his own imagination.

In 1962, Cooper had found out that RKO was licensing the character through John Beck to Toho studios in Japan for a film project called King Kong vs. Godzilla. Cooper had assumed the rights were indisputable and completely opposed to the project. In 1963 he filed a lawsuit to enjoin distribution of the movie against John Beck as well as Toho and Universal. Cooper discovered that RKO had also profited from licensed products featuring the King Kong character such as model kits produced by Aurora Plastics Corporation. Cooper's executive assistant, Charles B FitzSimons, stated that these companies should be negotiating through him and Cooper for such licensed products and not RKO.

In a letter Cooper wrote to Robert Bendick, he stated: "My hassle is about King Kong. I created the character long before I came to RKO and have always believed I retained subsequent picture rights and other rights. I sold to RKO the right to make the one original picture King Kong and also, later, Son of Kong, but that was all."

Cooper and his legal team offered up various documents to bolster the case that Cooper had owned King Kong and only licensed the character to RKO for two films, rather than selling him outright. Many people vouched for Cooper's claims including David O. Selznick(who had written a letter to Mr. A. Loewenthal of the Famous Artists Syndicate in Chicago in 1932 stating, The rights of this are owned by Mr. Merian C. Cooper. But Cooper lost the key documents through the years such as a key informal yet binding letter from Mr. Ayelsworth, former president of the RKO Studio, and a formal binding letter from Mr. B. B. Kahane, the current president of RKO Studio, confirming that Cooper had only licensed the rights to the character for the two RKO pictures and nothing more.

Unfortunately without these letters it seemed Cooper's rights were relegated to the Lovelace novelization that he had copyrighted. 

Cooper's lawyer received a letter from John Beck's lawyer, Gordon E Youngman, that stated: "For the sake of the record, I wish to state that I am not in negotiation with you or Mr. Cooper or anyone else to define Mr. Cooper's rights in respect of King Kong. His rights are well defined, and they are non-existent, except for certain limited publication rights."

In a letter addressed to Douglas Burden, Cooper lamented: "It seems my hassle over King Kong is destined to be a protracted one. They'd make me sorry I ever invented the beast, if I weren't so fond of him! Makes me feel like Macbeth: "Bloody instructions which being taught return to plague the inventor."

The rights over the character, Kong, did not burst to light again until 1975, when Universal Studios and Dino De Laurentiis were fighting over who would be able to do a King Kong remake for release the following year. De Laurentiis came up with $200,000 to buy the remake rights from RKO. When Universal got wind of this, they filed a lawsuit against RKO claiming they had a verbal agreement from them in regards to the remake. During the legal battles that followed, which eventually included RKO counter-suing Universal, as well as De Laurentiis filing a lawsuit claiming interference, Colonel Richard Cooper, Merian's son and now head of the Cooper estate, jumped into the conflict.

During the court battles, Universal Studios discovered that the copyright of the Lovelace novelization had expired without renewal, thus making the King Kong story public domain property. Universal argued that they should be able to make a movie based on the novel without infringing on any copyright, because the characters in the story were a public domain story. Richard Cooper then filed a cross-claim against RKO, claiming while the publishing rights to the novel had not been renewed, his estate still held control of the plot and story of King Kong.

During a four-day bench trial in Los Angeles, Judge Manuel Real made the final decision and gave his verdict on November 24, 1976, affirming that the King Kong novelization and serialization were indeed in the public domain, and Universal Studios could make its movie as long as it did not infringe on the original elements of the 1933 RKO film, which had not yet passed into public domain. Universal postponed their plans to film a King Kong movie, called The Legend of King Kong, for at least 18 months, after cutting a deal with Dino De Laurentiis that included a percentage of box office profits from his remake.

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. Shortly thereafter, Richard Cooper sold all his rights, excluding worldwide book and periodical publishing rights, to Universal Studios in December of 1976. In 1980 Judge Real dismissed the claims that were brought forth by RKO and Universal four years earlier and reinstated the Cooper judgement. 

In 1982 Universal Studios filed a lawsuit against Nintendo, which had created an impish ape character called Donkey Kong in 1981 and was reaping huge profits over the video game machines. Universal claimed that Nintendo was infringing on its copyright because Donkey Kong was a blatant rip-off of King Kong. During the court battle and subsequent appeal, the courts ruled that Universal did not have exclusive trademark rights to the King Kong character. 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. While they had a majority of the rights, they did not own the King Kong name and character. The courts ruling noted that the name, title, and character of Kong no longer signified a single source of origin.

The courts also pointed out that the Kong rights were held by three parties:
  • RKO owned the rights to the original film and its sequel.
  • The Dino De Laurentiis company owned the rights to the 1976 remake.
  • Richard Cooper owned worldwide book and periodical publishing rights.
The judge then ruled that Universal owns only those rights in the King Kong name and character that RKO, Cooper, or DDL do not own.

The court of appeals would also note:
First, Universal Studios knew that it did not have trademark rights to King Kong, yet it proceeded to broadly assert such rights anyway. This amounted to a wanton and reckless disregard of Nintendo's rights.

Second, Universal Studios did not stop after it asserted its rights to Nintendo. It embarked on a deliberate, systematic campaign to coerce all of Nintendo's third party licensees to either stop marketing Donkey Kong products or pay Universal royalties.

Finally, Universal Studios’ conduct amounted to an abuse of judicial process, and in that sense caused a longer harm to the public as a whole. Depending on the commercial results, Universal alternatively argued to the courts, first, that King Kong was a part of the public domain, and then second, that King Kong was not part of the public domain, and that Universal possessed exclusive trademark rights in it. 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. 

Because Universal misrepresented their degree of ownership of King Kong and tried to have it both ways in court regarding the “public domain” claims, the courts ruled that Universal Studios’ acted in bad faith. They were ordered to pay fines and all of Nintendo's legal costs from the lawsuit. That, along with the fact that the courts ruled that there was simply no likelihood of people confusing Donkey Kong with King Kong, caused Universal Studios to lose the case along with its appeal.

1933 Movie Scene
Since the court case, Universal Studios still retains the majority of the character rights. In 1986, they opened a King Kong ride called King Kong Encounter at their Universal Studios Tour theme park in Hollywood, and followed it up with the Kong ride at their Orlando park in 1990. They also finally made a King Kong film of their own, King Kong (2005). In the summer of 2010, Universal Studios opened a new 3D King Kong ride called King Kong: 360 3-D at their Hollywood park replacing the destroyed King Kong Encounter. 

The Cooper estate retains publishing rights for the content they claim. In 1990 they licensed a six-issue comic book adaptation of the story to Monster Comics, and commissioned an illustrated novel in 1994 called Anthony Browne's King Kong. In 2004 and 2005, they commissioned a new novelization to be written by Joe Devito called Merian C. Cooper's King Kong to replace the original Lovelace novelization and Kong: King of Skull Island, a prequel/sequel novel that ties into the original story. They are also involved in a musical stage play based on the story, called King Kong The Eighth Wonder of the World which premiered in June 2013.

RKO, whose rights consisted of only the original film and its sequel, had its film library acquired by Ted Turner in 1986 through his company, Turner Entertainment. Turner merged his company into Time Warner in 1995, which is how they own the rights to those two films today.

Dino De Laurentiis, whose rights were limited to only their 1976 remake, filmed a sequel in 1986 called King Kong Lives, but they still needed Universal's permission to produce a film. Today most of Dino De Laurentiis’ film library is owned by Studio Canal, which includes the rights to those two films. The North American rights to King Kong though, still remain with the film's original distributor Paramount Pictures, with Trifecta Entertainment and Media handling television rights to the film via their licence with Paramount.

The success of the movie King Kong was not purely based on technique. The motion picture’s story was just as strong as its special effects. O’Brien was able to give the mechanical puppet a personality with which audiences were able to identify. The giant ape’s gentle fascination with Ann Darrow provides the centerpiece to the picture; a tragic, at least for Kong, retelling of Beauty and the Beast. As one character at the end of the film relates, as he stands next to the body of the creature which has just been blasted from the top of the Empire State Building, “It wasn’t the planes that got him, it was Beauty who killed the Beast.” 


About the Author
Scott M. Cooper, the author of "Mysteries of History," is a Massachusetts native, now living in Florida. Cooper, a freelance writer, is the owner of The Elegant Quill, which offers ghost writing, fiction, non-fiction, editing, and proofreading services. He may be contacted at smcooper5289@gmail.com.

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