Ryan Moore ‘25
Law Weekly Historian
As the Law Weekly’s self-appointed historian, I often wander the halls of the Law School. This week I found myself standing before the wall of William Minor Lile Moot Court Competition winners. The names of prior winners are etched into plaques affixed to the wall for all eternity. The most notable name by far is the late Edward “Ted” Kennedy ’59, the eight-term Democratic senator from Massachusetts and one-time primary challenger to President Jimmy Carter. Ted Kennedy was a notoriously bad law student, maintaining a C average. But, relying on that old Kennedy oratory charm, he pulled through and won the 1959 Lile Moot Court Competition.
But this is not an article about Ted Kennedy; much ink has been spilled on him and his family, the only political royalty this country has ever known. This article is about the 1966 Lile Moot Court winner whose name and plaque sit directly below Kennedy’s: John J. Kirby, Jr ’66. Only a few law students know that John Kirby is known inside Nintendo as their “savior” after defending the company in 1983. Even fewer know that John Kirby is the namesake of the Nintendo video game character “Kirby.”
Pictured: John Kirby's Moot Court Plaque
Photo Credit: Ryan Moore '25
Pictured: Nintendo's Kirby
Photo Credit: Nintendo
In 1983, Nintendo was an upstart video game company trying to break into the American market. Originally founded in 1889 as, of all things, a playing card company, Nintendo entered the video game arcade market in the late 1970s. Nintendo struggled to gain a foothold in the United States until their 1981 arcade game Donkey Kong. In Donkey Kong, you play as “Jumpman,” tasked with rescuing “Pauline” from the evil “Donkey Kong” who kidnapped her. The player engages in a series of platform jumping puzzles as they climb up a series of ladders. Donkey Kong was so popular with the arcade gaming public that, in less than a year, Nintendo sold 60,000 Donkey Kong arcade machines and earned $180 million in the United States alone.[1]
Astute readers might notice that “Donkey Kong” sounds a little too much like “King Kong.” Universal Studios, which had released a 1976 remake of the movie King Kong, thought Nintendo’s giant ape resembled their own giant ape enough to warrant suit. Universal Studios sued Nintendo for trademark infringement, alleging that “Donkey Kong” was an unlicensed version of the ape from King Kong.[2]
This is where 1966 UVA Law grad and Moot Court co-champion John Kirby comes in. Nintendo hired John Kirby, then a partner with Mudge Rose Guthrie Alexander & Ferdon, to represent them. During Kirby’s research, he discovered that Universal Studios had previously represented in court that the story and character of “King Kong” were in the public domain. In 1975, Universal Studios sued the studio behind the original King Kong film. Universal Studios successfully argued that because the character and story of “King Kong” were in the public domain, they should be allowed to remake the movie without paying royalties. Kirby also identified key differences between “Donkey Kong” and “King Kong.”
After a seven-day trial, Kirby’s arguments ultimately prevailed. District Court Judge Robert W. Sweet held that, while “this is a dispute over two gorillas,”[3] both apes were sufficiently distinguishable. “King Kong [is] a ferocious gorilla in quest of a beautiful woman.” Meanwhile, “Donkey Kong is comical and entertaining . . . farcical, childlike and nonsexual.”[4] Those are not the words I would use to describe Donkey Kong, but then again I do not hold life tenure on the federal bench. Yet.
Nintendo was allowed to continue using the name “Donkey Kong.” Nintendo used the success of Donkey Kong to market their new home video gaming console, the Nintendo Entertainment System (NES). To ensure the successful launch of their new system, Nintendo re-branded Donkey Kong’s Jumpman character as “Mario” and gave him his own video game franchise, Super Mario Bros. The rest, as they say, is history.
To thank John Kirby, Nintendo named the video game character “Kirby” after him. The character Kirby is, to quote my wife, an “elastic pink puff ball that can transform into anything it inhales.” Kirby was also the first character I played as in Super Smash Bros. on the Nintendo 64. Nintendo also gifted John Kirby a twenty-seven-foot sailboat aptly named “Donkey Kong,” and granted him the exclusive right to use the name “Donkey Kong” for all sailboats in perpetuity. In 1992, Kirby was gifted an advance copy of Kirby’s Dream Land, one of my favorite childhood Game Boy games.
Kirby died on October 2, 2019, at age seventy-nine from cancer. But his memory lives on in the UVA Law community through a name on a plaque on the second floor of Slaughter Hall. And, of course, through the cute, loveable, little pink character that shares his name.
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tqy7zz@virginia.edu