Remembering Bill Kunkel: Capcom v. Data East

In my conversations with Bill Kunkel, he told me a couple of times that he stopped following new video game releases in the 2000s, stating he wasn’t sure any new game release would ever top Rare’s Goldeneye on the Nintendo 64. But if there was a video game genre as a whole Bill didn’t seem to enjoy, I would say that would definitely be the games produced during the fighting game boom.

When the rise of fighting game competitions came around, I showed some fighting game clips, which included EVO moment #37. My stance was that the fighting game genre was easier to follow than games such as first-person shooters (not that it is impossible to follow these, nor am I saying other eSports genres are worse) since, like a boxing match, there are only two fighters in an enclosed space to follow. I recall Bill saying he couldn’t enjoy these competitions because he didn’t understand what was going on in these games. In his defense, though, I would say commentary that would explain these mechanics has come a long way since when a lot of these types of clips were circulating at the time.

So it may come as a surprise that Bill successfully defended Data East as a video game expert in the company’s infamous lawsuit brought on by Capcom over the release of Fighter’s History. When Capcom saw huge success with Street Fighter II, this naturally led to a number of other releases trying to cash in on the genre. With so many fighting game titles in the market, a lot of people tend to question why Fighter’s History of all games was the target of Capcom’s attempted clutch on the entire genre. When Fighter’s History/Fighter’s History Dynamite (the sequel otherwise known as Karnov’s Revenge in the U.S.) gets played on a notable fighting game stream, the topic of the Capcom v. Data East lawsuit typically comes up, with a lot of viewers having questions about that case.

The Capcom v. Data East lawsuit fills out one of the chapters in Bill’s book “Confessions of the Game Doctor,” published by Rolenta Press in 2005 (Rolenta Press is led by historian Leonard Herman, who penned “Phoenix,” one of the original publications that details the full history of video games – I highly recommend both of these books!). To understand why Bill would be considered an expert for such a trial, it is necessary to explain this was his third time being called as an expert for cases relating to the video game industry.

He was called in for the Pac-Man v. K.C. Munchkin trial, which in a similar premise to Street Fighter II v. Fighter’s History, Atari argued the Magnavox Odyssey 2’s K.C. Munchkin was too much of a copy of the Pac-Man it was attempting to produce for the Atari VCS. Bill was part of the team that successfully defended K.C. Munchkin in this trial, but he writes this decision was eventually overturned in an appeals process in which he did not take part.

Bill also volunteered his services in defense of the Lewis Galoob Toy Co., which saw its Game Genie product come under fire by Nintendo itself. He explained this matter was settled before he even had to enter a courtroom, noting most of his involvement in the case was in determining damages Nintendo had caused to Galoob through its overturned injunction on the Game Genie.

This brings us to his third trial, in which Data East was being sued by Capcom over the release of Fighter’s History. Bill recalled being contacted by the law firm Fenwick & West, which was defending Data East for that case. Bill was able to sample Fighter’s History at a local convenience mart and decided the game couldn’t compete in the lawsuit if a “look and feel” claim was being made. As fate would have it, though, the actual claim made by Capcom for the suit was that the games produced by companies such as SNK and Data East were infringements on the characters it created for Street Fighter II. It was surmised by Bill that this approach was taken to single out a smaller developer such as Data East, as Mortal Kombat’s digitized characters featured a look more unique compared to Street Fighter.

“I have always believed that the real reason Capcom gave Mortal Kombat a bye, however, was its unwillingness to face the legal guns which Midway (owners of the original arcade license) and Acclaim (holders of the home gaming rights) would surely bring to bear in such a case,” wrote Bill in “Confessions of a Game Doctor.”

Bill further wrote the lawsuit would likely result in other smaller companies shying away from producing its own competing games, and added it may have also been spurred by the recent development of Capcom developers taking positions at SNK.

“But the bottom line was the same as it had been in the Magnavox vs. Atari case – Capcom was trying to lock up a genre,” Bill wrote in his book. “I may be a fool, but I’m a stubborn fool, and the issue of genre plundering always gets my hackles up.”

In preparing Data East’s defense, Bill noted a valuable tool he had was the book “Manga! Manga! The World of Japanese Comics,” written by Frederik L. Schodt. The approach was to show Capcom itself had “borrowed” heavily from pre-existing Japanese culture and literature instead of producing wholly-original concepts that could be “stolen.” In fact, while this is more commonly known in 2021, he pointed out in 1993/94, this book showed Street Fighter’s M. Bison (Vega in the Japanese version) was practically a carbon copy of the character Washizaki from Masahiko Takajo and Tetsuya Saruwatari’s manga “Riki-Oh.”

Bill wrote that play mechanics were also a large issue reviewed in the case. However, the approach taken was to show that if a player wanted to jump to the right, it would only be natural to someone that an up and right input would trigger this response. Other inputs wouldn’t be intuitive and showed that Street Fighter’s system demonstrated what was sensible to begin with.

Bill recalled that, once in the courtroom, the case was almost over as soon as it began. He wrote that the judge was prepared to rule immediately, likely in favor of Capcom based solely on his surface view of the games beforehand. However, the case was saved as the defense pleaded they placed great expense into the defense and in having Bill present for the case. Bill admitted the law firm and Data East were paying out “massive bucks,” but that was expected as this case essentially put Data East’s life on the line.

Bill wrote that his first presentation shifted the mood of the judge, who began to see there was more to the case, which then led to days of testimony and deliberation. He recalls while he held up against cross-examination, this was not true for Capcom’s expert, said to be the person who wrote a strategy guide for Street Fighter II. In Bill’s words, the Fenwick & West defense team “gutted him like a fish.”

Now, there is a reason I brought up my experiences in talking fighting games with Bill. These experiences are echoed with what he wrote for the chapter in “Confessions of a Game Doctor:”

“Fenwick & West seemed very well pleased with my performance, but there was one thing about me that scared the hell out of them – I absolutely sucked at 2-D fighting games. To be honest, I pretty much hated them and this period of dominance by the 2-D fighters was tough for me to deal with. The idea that I would practice these elaborate moves for hours was about as exciting to me as watching grass grow.”

The fear was that Capcom would call out Bill’s expert status by having him play the games during the case. Bill wrote that he underwent tutelage from a seasoned player – a cost of $5,000 over two days. This taught him Street Fighter II’s special moves and brought him up to a level where the tutor declared Bill as “not awful anymore.” Bill further alleged Data East had spent millions in producing split-screen animations comparing the characters from both games.

As fate would have it, Bill was never asked to play the games during the case, and the defense team went on to successfully win the case. However, Bill estimated this “win” cost Data East a massive amount of money, and, as we all know today, the company didn’t make it much further.

A March 1997 issue of GamePro noted the U.S. division of Data East closed its doors by the end of 1996 and an internet-archived comment from Data East Corp. shows the company withdrew from arcades in 1998 with an estimated debt of 3.3 billion Japanese Yen (roughly $30 million U.S., which when you consider this was 1998, that amount is similar to the value of $50.24 million U.S. today). This archived comment discusses the company’s filing with the Tokyo District Court and discusses its plans of only focusing on home console games and the communications industry. Another archived internet comment from Data East shows the company completely ended its support services for video games in March of 2000.

Those are certainly some highs and lows for Data East, but the Capcom v. Data East case gives us a rare glimpse of the industry’s workings in the 1990s when the internet wasn’t in every home to constantly peek behind the curtain. Bill’s account of the case in “Confessions of the Game Doctor” is one of the rare sources that peels back the surface of one of the most discussed topics when Fighter’s History is involved in fighting game circles today.

This is just portion of what Bill details in his book, providing even rarer looks at some of the industry’s working through the decades. Again, I can’t recommend “Confessions of the Game Doctor” and Leonard Herman’s “Phoenix: The History of the Videogame Industry” enough if you’re even remotely curious about video gaming history.