Howard Lincoln had never registered a trademark when Minoru Arakawa asked him to protect a new arcade game called Donkey Kong. He was a Seattle lawyer who worked on banking and company law, and he told Arakawa it would be “no problem”. It was, he later told the journalist David Sheff, “a typical lawyer response. You never tell a client that you don’t know what you’re doing.”
Within a year he was sitting across a lunch table from the president of Universal City Studios, telling him that Nintendo would not pay for King Kong. He then spent seventeen years as Arakawa’s partner at the head of Nintendo of America, first as senior vice-president and from 1994 as chairman. He was the company’s voice in its fights with Atari Games, at the Chicago show where Nintendo dropped Sony for Philips, and at the 1993 Senate hearings on violent games. When he left Nintendo he ran the Seattle Mariners, the baseball club Nintendo’s money had kept in the city, for another sixteen years.
Fast facts
- Born: 14 February 1940, Oakland, California.
- Education: University of California, Berkeley, then its law school, Boalt Hall.
- Before Nintendo: Navy judge advocate at Sand Point Naval Air Station in Seattle; then a lawyer at the Seattle firm Sax and MacIver from 1970.
- Nintendo of America: its outside lawyer from 1981; senior vice-president from 1983; chairman from 1994 until he left in February 2000.
- Seattle Mariners: chief executive from 1999, and chairman and chief executive when he retired in 2016.
From Oakland to Sand Point
Sheff’s Game Over, which draws on long interviews with Lincoln, gives his early life. His father was an executive with the Pullman Company, which built railway sleeping cars, and Lincoln remembered being taken as a small boy to see trains of wounded soldiers returning to San Francisco. He was a Boy Scout, and in 1954 he posed for a Norman Rockwell painting used on the Scouts’ 1956 calendar: he was the blond boy with the angelic smile.
He studied at Berkeley from 1957, and was admitted to its law school, Boalt Hall, in 1962. Before his navy service began he worked in the Alameda County district attorney’s office, where he assisted Ed Meese, later the United States Attorney General. In 1966 he joined the navy as a judge advocate and was posted to Sand Point Naval Air Station on Lake Washington, where he defended and prosecuted courts-martial, many of them for desertion during the Vietnam War. There he met Grace, a naval lieutenant; they married six months later. When he left the navy in 1970 they stayed in Seattle, and he joined the law firm of Sax and MacIver.
Donkey Kong and King Kong
Lincoln reached Nintendo through two of its first salesmen, Ron Judy and Al Stone, whose contract with Nintendo of America he had rewritten; he called the original “completely screwy”. Judy introduced him to Arakawa, who needed the Donkey Kong name trademarked and the game copyrighted.
Lincoln also wrote the contract that licensed the home rights to Coleco in 1981, finishing it on Christmas Eve. Arakawa asked why Nintendo had to warrant that it owned the game. Lincoln said it was just the way things were done, then shrugged: “I guess you don’t have to.” The contract left the risk with Coleco, and that clause mattered a few months later.
In April 1982 Universal City Studios claimed that Donkey Kong infringed its rights in King Kong. The full story is in Universal vs Nintendo. At the first meeting at Universal City, Coleco’s lawyers urged Nintendo to settle as Coleco had quietly done, and Lincoln asked Universal to prove that it owned King Kong at all. “I’m not going to buy the goddamn Brooklyn Bridge,” Sheff has him saying. At a lunch with Universal’s president, Sidney Sheinberg, Lincoln told him that Nintendo had investigated the claim and would not settle. The court’s findings and Sheff’s account differ on the date and on the exact words of the parting exchange, and the Universal vs Nintendo entry sets out both.
To fight the case Lincoln went to New York and hired John Kirby of Mudge, Rose, Guthrie, Alexander & Ferdon. “When I initially met him, I wasn’t all that impressed,” Lincoln told Sheff, but “this guy was one hell of a lawyer.” Together they went to Kyoto to meet Nintendo’s president, Hiroshi Yamauchi, who told them “I have no liking for lawyers.” Kirby won the case and Nintendo’s counterclaims.
While the case was being prepared, Arakawa asked Lincoln to leave his firm and work for Nintendo. Lincoln said he would come only to help run the company, not as its in-house lawyer, and Arakawa agreed at once. Lincoln became senior vice-president, second only to Arakawa. “We learned that we could handle ourselves in the big leagues,” he said of the Universal case.
The licence
With Arakawa, Lincoln wrote the licence that decided who could publish games for the NES in America, based on the one Nintendo used in Japan. Nintendo approved every game and its packaging, made all the cartridges itself, took a minimum order of 10,000, and allowed each publisher five games a year. The terms were severe enough that Lincoln had Kirby check that they were legal. “They couldn’t afford to make many mistakes because they only had five shots a year,” Lincoln told Sheff. The Nintendo Seal of Quality entry covers the licence and the seal that came with it.
Tengen and Tetris
The licence and the lockout chip that enforced it made Nintendo a target. Atari Games, the arcade company, signed a licence and published NES games under a new label, Tengen, while it worked on a way round the chip. In December 1988 it announced that it would make NES cartridges without Nintendo’s permission and sued Nintendo, accusing it of monopolising the market. Atari Games’ Dennis Wood asked in a press release, “Who gave Arakawa, Lincoln, and Main the power to decide what software the American public can buy?”
Nintendo countersued, and the courts found that Atari Games had not simply reverse-engineered the chip. Its lawyers had obtained a copy of Nintendo’s lockout program, the 10NES, from the US Copyright Office by stating that it was needed for a lawsuit, when no suit had yet been filed. In 1992 the Court of Appeals for the Federal Circuit upheld a preliminary injunction against Atari Games on Nintendo’s copyright claim. Sheff records Lincoln’s reaction to the original announcement: “We’d been scammed.”
Lincoln was also at the centre of the fight over Tetris. In March 1989 he and Arakawa flew to Moscow and negotiated with Elorg, the Soviet agency that licensed the game, for three days; Sheff says Lincoln insisted on a clause obliging the Soviets to testify in America if the rights were challenged. The contract gave Nintendo the rights for game consoles, and Tengen’s own NES version was stopped by an injunction in June 1989. Edge later summed up the result as console rights “lasting until 1995 for Nintendo”. The Tetris legal battles entry tells that story.
Not every case went Nintendo’s way. When Lewis Galoob Toys launched the Game Genie, a cartridge adapter that changed the numbers inside games, Lincoln argued that it spoiled them: “If you spend enormous time and effort to come up with ‘Super Mario 3’ and the player can get all the way through it, basically by cheating, then the challenge is gone.” Nintendo lost at trial in 1991, and the Court of Appeals for the Ninth Circuit agreed in 1992 that the device did not infringe Nintendo’s copyrights. “Godzilla in Toyland had gotten beaten,” Lincoln told Sheff.
Philips, Sony and the Senate
Lincoln was increasingly Nintendo of America’s public face. At the Consumer Electronics Show in Chicago in June 1991, Sony announced the PlayStation, a CD-ROM system it had been developing with Nintendo. The next morning Lincoln stood up at Nintendo’s own press conference and announced that Nintendo would work with Philips instead. Edge retold the scene in 1995; Sheff quotes Lincoln on the efforts Sony made to stop the press conference taking place.
On 9 December 1993 he testified for Nintendo before Senators Joe Lieberman and Herb Kohl at a joint hearing on violence in video games (see the 1993 congressional hearings). Nintendo had released a version of Mortal Kombat without the arcade game’s blood, and Lincoln used it to contrast Nintendo with Sega, whose version kept the gore. “Let me state for the record that Night Trap will never appear on a Nintendo system,” he said of the Sega CD game the senators had singled out. He turned on Sega’s witness, Bill White, a former Nintendo employee, telling the senators that White “knows the demographics as well as I do”. Sheff describes the hearing as bringing the two companies’ rivalry “right out into the open”; White replied that Nintendo had removed the blood from Mortal Kombat but kept the fighting and sold it to all ages without a rating.
The industry’s answer was a trade association and, in 1994, a ratings board, the ESRB. Lincoln later remembered the first meeting of industry leaders: “there were a lot of knives on the table that day - we certainly had ours.”
Chairman
Early in 1994 Nintendo made Lincoln chairman of Nintendo of America, with Arakawa staying on as president. “It was agreed that Mr. Arakawa and I would be jointly responsible for the overall administration of Nintendo of America,” Lincoln said. By that summer he was presenting Nintendo’s biggest announcements. At the summer Consumer Electronics Show in Chicago in 1994 he unveiled Donkey Kong Country; Edge reported that his keynote stressed “the importance of gameplay over technology”. A year later, as Nintendo’s next console slipped, he told the press: “We have made a conscious decision not to rush the Nintendo Ultra 64 to market.” It reached America as the Nintendo 64 in 1996.
In July 1999 Edge reported that he would retire from Nintendo of America the following February, while staying on its board.
The Seattle Mariners
Lincoln’s second career came out of Nintendo. Late in 1991 Washington’s senator Slade Gorton asked Arakawa and Lincoln whether Japanese investors might keep the Seattle Mariners from leaving the city. Yamauchi agreed to put up most of the money (the Hiroshi Yamauchi entry covers the purchase), and in December 1991 Lincoln rang Gorton with the news. Baseball’s commissioner at first refused to allow a Japanese owner. “The only thing that stopped this cold was that Yamauchi was Japanese,” Lincoln said. Baseball’s owners approved a reworked deal on 1 July 1992.
In September 1999 Lincoln became the Mariners’ chief executive, and he ran the club full-time after leaving Nintendo of America in February 2000. On 27 April 2016 he announced his retirement, as Nintendo of America sold all but 10 per cent of its stake to the club’s minority owners. The Mariners had not reached the play-offs since 2001, but Lincoln took pride in the purchase that started it all: “I played a big part in saving the Mariners for Seattle.”
Sources
- David Sheff, Game Over (1993; GamePress edition, 1999): chapter 5, “Coming to America” (Lincoln’s family, the Rockwell painting, Berkeley and Boalt Hall, Ed Meese, the navy and Sand Point, Grace Lincoln, Sax and MacIver, the Judy and Stone contract); chapter 6, “For a Fistful of Quarters” (the trademark and “a typical lawyer response”, the Coleco contract and “I guess you don’t have to”, the Universal City meeting and the Brooklyn Bridge, the lunch with Sheinberg, hiring Kirby and “one hell of a lawyer”, the Kyoto meeting, joining Nintendo as senior vice-president, “the big leagues”); chapter 10, “Game Masters” (the licence and “five shots a year”); chapter 11, “The Big Sleep” (Tengen’s announcement and suit of December 1988, Wood’s press release, “We’d been scammed”, the Copyright Office affidavit); chapter 12, “Game Over” (the Game Genie case, “Super Mario 3” and “Godzilla in Toyland”); chapters 13-14 (the Moscow negotiations, the testimony clause, the Tetris injunction of June 1989); chapter 15 (the Philips announcement at the 1991 CES); chapter 16, “Borders” (Gorton, the December 1991 call, the commissioner’s refusal, “Yamauchi was Japanese”, approval on 1 July 1992); “Game Over: Press Start to Continue” (1999 update), chapter 2 (the hearings, White’s reply, the trade association and “knives on the table”, the chairmanship in early 1994 and “jointly responsible”).
- Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed. Cir. 10 September 1992): the 10NES program obtained from the Copyright Office and the preliminary injunction upheld. https://law.justia.com/cases/federal/appellate-courts/F2/975/832/163650/
- Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (9th Cir. 1992): the Game Genie ruled not to infringe. https://law.justia.com/cases/federal/appellate-courts/F2/964/965/341457/
- Edge issue 74, August 1999: Nintendo’s console Tetris rights “lasting until 1995” after the litigation against Tengen.
- Edge issue 17, February 1995, PlayStation feature: Lincoln’s announcement of the Philips deal the morning after Sony’s.
- Edge issue 12, September 1994: “NOA chairman Howard Lincoln” unveiling Donkey Kong Country at the summer Consumer Electronics Show in Chicago, and his keynote.
- Edge issue 85, June 2000, five-years-ago retrospective: “NOA chairman Howard Lincoln” on not rushing the Ultra 64.
- Edge issue 73, July 1999: Lincoln to retire from Nintendo of America in February, remaining on its board.
- C-SPAN, “Video Game Violence”, 9 December 1993 (public record of the Senate hearing). https://www.c-span.org/program/senate-committee/video-game-violence/129470
- Jimmy Maher, “The Ratings Game, Part 2: The Hearing”, The Digital Antiquarian, April 2021 (web, secondary): Lincoln’s testimony on Night Trap, Mortal Kombat and Bill White. https://www.filfre.net/2021/04/the-ratings-game-part-2-the-hearing/
- ESPN, report on the Mariners’ ownership change, 27 April 2016 (web, secondary): his retirement, Nintendo’s sale of all but 10 per cent, his taking the full-time role in 2000, the play-off record and “saving the Mariners for Seattle”. https://www.espn.com/mlb/story/_/id/15414224/mariners-chairman-ceo-howard-lincoln-reportedly-step-position
- Wikipedia, “Howard Lincoln” (web, secondary): his date of birth; joining Nintendo in 1983; Mariners chief executive from September 1999. https://en.wikipedia.org/wiki/Howard_Lincoln