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My Three Trials
Three Experiences as an Expert Witness
in the Electronic Games Industry


by Bill "The Game Doctor" Kunkel

Trial 1 (1982)

Electronic Games magazine had several issues under its belt when Atari shook up the videogame world by asserting its legal ownership over the US home license for Namco's coin-chomping arcade champion, Pac-Man. Throwing its weight around like the proverbial 900 lb. gorilla, Atari had backed down companies from Arcade Plus (whose dot-gobbler Ghost Hunter disappeared from retail shelves along with the company itself; as founder Scott Orr rebuilt Arcade Plus into Gamestar and went on to become one of the era's most successful sports simulation publishers) to Sierra Online (publishers of John Harris' beloved Jawbreaker).

Atari then turned its litigious eye on Magnavox, whose Odyssey2 had just launched its own maze-chase game, K.C. Munchkin. Flush with its victories over several smaller publishers, Atari's legal nostrils flared further when it appeared that the O2 game would actually hit the holiday market ahead of Atari's problem-plagued Pac-Man for the 2600 (as fans of the system no doubt recall, Atari's version of the coin-op classic looked as if it had been based on the adventures of Blinky the ghost, rather than Pac-Man the gobbler). Thus, the dogs of war were unleashed and Magnavox' entry into the maze-chase race was legally challenged.

Back in NYC, meanwhile, I was more or less living in the old offices of Reese Publishing. Our magazine, Electronic Games, had really begun to take off, but Arnie Katz was still working a well-paid full-time gig in trade journalism (which explains why he is identified as "Francis Laney Jr." in the first issue or two). It was the middle of a typically busy day when a call came in from Knoxville, headquarters of the O2 division. It was Gerry Michaelson, a top executive and our personal connection at Magnavox.

Now I will be forthright here and admit that Arnie, Joyce Worley and I were much closer, personally, with the execs at Magnavox than we were with Michael Moone and the other Atari suits. The Odyssey folks had taken great pains to establish a relationship with us whereas our contacts at Atari were largely limited to public relations personnel. Nonetheless, both companies were great supporters of the magazine, buying ads and sending us EPROMs (erasable programmable ROM cartridges which were produced prior to the publication of the final version) of whatever we needed. But Michaelson was the first person in the industry, along with Diane Drosnes at Activision, to truly "get" the importance of a publication such as EG.

Nonetheless, while we enjoyed much of the O2 software (UFO, War of Nerves and, indeed, K.C. Munchkin itself were among the finest games to emerge during the Golden Age of programmable videogame systems), the majority of our coverage was devoted to Atari. Not only was the 2600 the dominant system of that era, but Atari's coin-op division had also scored in the arcades with such classics as Asteroids, Centipede and Missile Command to its credit.

Atari also became the first of the home systems to offer its gamers licensed versions of popular coin-ops from other publishers. It was, in fact, Atari's experience with Space Invaders that precipitated its litigious behavior following the acquisition of Pac-Man from Namco.

Taito's Space Invaders was a blockbuster, the first mass-market videogame success story since the arrival of Pong in 1971. Atari licensed the game for the home market in 1979 and launched a massive marketing campaign that included tournaments in cities across the United States, with the ultimate winner (Bill Heineman, who went on to carve out a career for himself as a first-rate game programmer/designer) determined at a national shoot-out.

But while Space Invaders became the killer app for the 2600 and established Atari as the dominant force in the newly-emerging videogame industry, the Sunnyvale giant could not help but notice the armada of Invader clones buzzing around the electronic gaming landscape. Virtually every console or computer system capable of playing games had its own version of the game, with the play mechanics, visual presentation and, sometimes, even the famous thumpa-thumpa audio accompaniment dutifully duplicated.

Clearly, Atari was not about to stand by and allow the same thing to happen with its Pac-Man license, especially given the fact that its own 2600 version was not quite all that it could have been. Bad enough those maze-chase imitators were sprouting like wheat on a Kansas farm, but when the clones looked to outshine the "legitimate" home version, Atari let loose its legal eagles.


Anyway, when Gerry phoned me on that memorable day, he didn't ask for much. He just wondered if I'd serve as an expert witness on behalf of Magnavox in the forthcoming Pac-Man Versus K.C. Munchkin courtroom slugfest. No problem, pal, I thought, I'll just alienate the top execs in our industry and make myself persona non grata with the number one producer of videogames in the world.

But not for nothing, that issue was never real. I talked to the Magnavox lawyers, read the legal documents and played the Odyssey2 game. In the process, I became convinced that Atari was attempting something that was, in my opinion, illegal and dangerous to the continued success of the entire electronic gaming industry. Remember, I used to write comic books. The historical horror of DC Comics (AKA National Periodicals) taking Fawcett to court based on the notion that Captain Marvel was too much like DC's Superman was a piece of history I knew only too well.

Atari, like DC Comics, was attempting to hijack an entire genre.

DC argued that both Superman and Captain Marvel possessed super powers, secret identities and capes. Had DC's case not been ultimately overruled, there would be one company in the United States with the right to publish superhero comics.

Ultimately, however, the courts realized that ceding an entire category of comic books to one publisher was no different than restricting the publication of mystery novels to Bantam or the release of R&B music to Atlantic.

Clearly, this was an issue that Mattered.

Moreover, while Atari could indeed claim that games such as Ghost Hunter and the original Jawbreaker (the game was later redesigned by Chuckles for the 2600) intentionally duplicated the look, feel and play of Pac-Man, K.C. Munchkin's designers (presumably Ed and Linda Averette) had clearly taken great pains not to ape the original. The differences included a greatly diminished number of pellets which actually moved around the maze, fleeing from the ravenous Munchkin. As fewer and fewer pellets remained on the screen, their speed increased until the final dot was literally racing around the playfield.

This was no clone; this was simply a different game in the same category as Pac-Man. And it was a category that Atari intended to own, lock, stock and pellets.


The case itself was surreal. Throughout most of the testimony, a Namco Pac-Man machine was happily running on attract mode while a TV monitor displayed the relatively silent image of the accursed wannabe, the pretender to the Pac-Crown, K.C. Munchkin.

I remember two things about that case very clearly and neither was the verdict.

1) On one trip to Chicago (where the trial was taking place for reasons still unknown to me), it was bitterly cold and windy, even by Chicago standards. As my taxi moved through the Loop and into Downtown I noticed that a building right off Lake Michigan had what appeared to be gunwales attached to their brick structure. A stout rope had been strung through the loops in each of the metal structures and I asked the cab driver what it was.

"What?" he asked. "You mean the rope?"


"That's for when the wind off the lake REALLY blows hard."

"I don't getcha."

"It's for people - something for them to hang on to!"

I rolled my eyes and dropped into the back seat thinking: "They must tell that one to every tourist they pick up at the airport."

Just then, the driver gestured out his window. "There ya go."

It was a woman, thin, middle-aged, her hands locked in a death grip around that thick rope, her legs lifted off the ground by a great, Ice Age gust, wavering like a pennant in the horrific Chi-Town updrafts.

2) As mentioned earlier, the sounds of Pac-Man's coin-op attract mode accompanied almost every moment of the trial - with one memorable exception. The bailiff interrupted the judge at one point and His Honor ordered the machines to be temporarily disconnected and removed into a back room. As the lawyers, contesting parties and interested bystanders looked on, the double doors to the courtroom swung open and two US Marshals appeared on either side of what looked like the nastiest biker this side of a Roger Corman movie. Handcuffed and manacled, the massive, bearded gentleman was escorted up the aisle and stood between his bookend babysitters as he faced the judge.

His Honor explained that this fellow was up for sentencing and he absolutely had to deal with it then and there. Begging our indulgence, the judge looked sternly at the prisoner and pronounced sentence.

"Five years," was all I heard, upon which declaration the prisoner and his escorts turned and shuffled back out through the doors. The Namco coin-op, TV set and Odyssey2 were then immediately returned to the courtroom, plugged in and set on attract mode. Our strange little interlude with reality had ended and as the familiar Pac-Man music and sound effects filled the hall, the entire trial took on a genuinely surreal atmosphere.


The upshot of that trial has always remained something of a mystery to me. Magnavox, it seemed, had won the battle but would go on to lose the war. Apparently over-confident following its initial victory, Atari was able to get the judgment overturned on appeal as the court ruled that the oral consumption of pellets was proprietary to the Namco game. K.C. Munchkin disappeared from store shelves that holiday season and entered the videogame history books.

Nonetheless, a wide array of maze-chase games continued to appear using a variety of visual stratagems to deflect Atari's litigious wrath. Atari had beaten back the Munchkin, but it failed in its attempt to engulf the entire maze-chase category.

As we shall see, however, it would not be the last time a game publisher would attempt to lock up an entire game genre.


In the second installment of this memoir,
Kunkel takes on Nintendo on behalf of Galoob and the Game Genie!

© 2003 by Bill Kunkel


Copyright © 2003, GOOD DEAL GAMES