Law Review: It’s on like Donkey Kong

The arcade game high score. The apogee in the annals of pixilated history. The record meant to be broken, but never stolen. In William James Mitchell v. Twin Galaxies, LLC, the California Court of Appeal, Second Appellate District, weighed in on one man’s quest to preserve the legacy of his Donkey Kong high scores.

William “Billy” Mitchell is a video gamer. But not just any geek off the street. Mr. Mitchell is an outright legend. The first person to achieve a perfect score in the Pac-Man arcade game. Declared “Video Game Player of the Century.” The holder of at least three high scores in Donkey Kong – as recognized by the International Video Game Hall of Fame and Guinness World Records. The “Don of Donkey Kong,” if you will. So, it was barrel-shattering news when Twin Galaxies, LLC, an international arbiter of video game records, decided to remove all of Mr. Mitchell’s Donkey Kong scores from its leaderboards and ban him from participating in its competitions.

Twin Galaxies stripped Mr. Mitchell of his Donkey Kong accolades after investigating accusations that he achieved the high scores on modified, or non-original, Donkey Kong hardware. The allegations of cheating were Bondsean in magnitude. Word spread worldwide, with even the New York Times picking up the story. Guinness World Records vacated Mr. Mitchell’s high scores (though later restored them after its own investigation). Mr. Mitchell tried to clear his name, but Twin Galaxies twice rejected his request for retraction. The damage had been done. The good name of the Don of Donkey Kong had been defamed. Litigation was now the game.

Mr. Mitchell filed suit against Twin Galaxies for defamation to obtain monetary damages for harm to his reputation and to that of his hot sauce company, Rickey’s Hot Sauce. High scores and hot sauce. Justice shall be served. Because Mr. Mitchell is a public figure of world-renown stature, Twin Galaxies filed a motion to have the lawsuit dismissed on the ground the high score allegations were protected speech under the First Amendment. Twin Galaxies argued it could not be liable for defamation, which is the “intentional publication of a fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage,” without proof it acted with “actual malice” in regard to the falsity of the statements. A statement made with “actual malice” is one made “with knowledge that it was false or with reckless disregard of whether it was false.”

The case thus turned on whether Mr. Mitchell could show by clear and convincing evidence that Twin Galaxies turned its back on the truth when accusing Mr. Mitchell of cheating. The court found in Mr. Mitchell’s favor. The evidence established that various video game experts had examined the equipment Mr. Mitchell used to achieve the high scores and found it to be original and legitimate; that Twin Galaxies’ principal refused to review Mr. Mitchell’s proof and “doesn’t care what anybody says”; and, that Twin Galaxies relied on biased sources to discredit Mr. Mitchell – including one with an admitted “master plan” to “take [Mitchell] down.” The appellate court concluded that Twin Galaxies failed to investigate facts showing Mr. Mitchell’s scores were legitimate, and that deliberate inaction to acquire such facts amounted to “purposeful avoidance of the truth” constituting actual malice. Game over for Twin Galaxies’ motion to dismiss. The Don of Donkey Kong may yet reign again.

By ruling in favor of Mr. Mitchell, the court of appeal issued an apropos affirmation that defamatory speech recklessly devoid of truth will find no shelter under the First Amendment. The proverbial ostrich with its head in the sand is wise to keep its mouth shut. And speaking of animals, the main character in Donkey Kong is an ape, not a donkey. Truth.

Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at or Like us on Facebook

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