The Lawsuit Over Who Could Publish It

Two versions on the same console, one of them recalled, and a ruling that turned on what had actually been licensed.

By 1989 two different companies were selling versions of the same falling-block game for the Nintendo Entertainment System in North America. Only one of them had the rights.

Two cartridges, one console

Nintendo published its version under the rights secured directly from ELORG in Moscow. Atari Games, through its Tengen label, published its own, under rights traced back through the earlier Western licensing chain — the one resting on the disputed original agreement.

Tengen's version is, by fairly broad agreement among people who played both, the better game: faster, with a two-player mode and a considerably better soundtrack. That turned out not to be the question at issue.

What the case turned on

The dispute was not about whether the two games looked alike, or whether one had copied the other's code. It was about the scope of a licence: whether the chain Atari Games relied on had ever conveyed console rights at all, or whether those rights had remained with ELORG until Nintendo negotiated for them directly.

The court found for Nintendo. Tengen's version was pulled from sale and remaining cartridges were recalled.

The afterlife of a recalled cartridge

Because it was withdrawn shortly after release, the Tengen cartridge became a collector's item almost immediately, and has stayed one. It is one of the more sought-after NES releases, valued less for rarity in the ordinary sense than for being the version that was better and lost anyway.

Why it is still taught

The case is a standing example of something that sounds dry until it costs somebody a fortune: a sublicence cannot convey more than the original licence held. Every party downstream in that chain had acted in reasonable good faith. Contracts had been signed, money had changed hands, products had shipped. None of it mattered, because the first link did not cover what everyone had assumed it covered.

It is also a reminder that the commercial history of this game is stranger than the game deserves. It is a puzzle about rectangles. It generated a decade of international litigation.

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