.0$--> Blood Moon Rising Magazine Issue #54 - Special Features 1
Special Features
The Mighty Ape Kong,
America’s Monster,
Turns 80 Years Old

By S.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 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 documentry 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.

   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 in appearance, he 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.

   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, O’Brien and other
special effect and was able to combine it with other techniques, such as rear
projection and miniature projection, to place the actors in the shots with the ape,
filmed in such a way not seen before this 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 1990’s.

   In 1975, Producer Dino De
Laurentiis paid RKO for the remake
rights to King Kong.  This resulted in
King Kong (1976).  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 with-
out any anthropomorphic features.  
Kong looked and behaved more like
a real gorilla: he had a large herbi-
vore'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 un-
related 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.  As well,
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 charac-
ter, Kong, have been split with not one single exclusive
rights holder.  Numerous parties have contested that
various aspects are public domain material and there-
fore 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 countersuing 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.

   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
frontation 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.  A King Kong-themed dueling
roller coaster is part of the proposed Universal Studios Dubailand in the United
Arab Emirates.

   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.  The production also involved Global Creatures, the company behind the
Walking with Dinosaurs arena show.

   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.”
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