Jimquisition: Lawsuits, Memes, and Tasty Medicine

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Lawsuits, Memes, and Tasty Medicine

Warner Bros. and 5th Cell are facing a lawsuit over the inclusion of Keyboard Cat and Nyan Cat in Scribblenauts. Preposterous, you say? Greedy, are the meme makers? I say well done them!

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Except for the fact that the game was released BEFORE the copywrite was even filed.

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

According to the creators, the legal blog that initially reported this suit got all the dates wrong.

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

I think this is about Scribblenauts Unlimited which is after the copyright... Apparently Nyan Cat was copyritten in 2011 which is before the WiiU.

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

This reminds me of another semi-famous instance that was similar. Bill Waterson was the creator and owner of Calvin and Hobbes, and was against doing any sort of merchandising aside from one or two calendars and a few collection books. Well some people made those Calvin Peeing stickers you occasionally see on truck windows or the like. Bill copyrighted Calvin and Hobbes, but by then, it was too late. The judge ruled against him, saying that "Well you should have copyrighted sooner." And that's kinda what's happening here. WB used the images, the cat owners copyrighted them after, and most likely a judge will say "Well, you're kinda too late here."

This is compared to when WB has videos copyrighted, and then goes after people who post that copyrighted material after it was copyrighted. Unfortunately, it seems like WB might end up on top here, and they'll just have a big grin on their face that they got away with it.

"Don't steal everything from the internet. Just steal what hasn't been copyrighted yet. They can't prosecute us for that."

I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.

True it's fun to see Warner Bros get a taste of it's own medicine, but this would be even worse if the Nyan cat and Keyboard cat people win. I seem to remember Batman showing up in one of your episodes, be that in clip or in costume. That would then have a legal precedent to get your ass sued off, after all I presume the escapist is paying you, what they pay you with is not really important but you are making a profit whilst using trademarked or copyrighted images in your work. This would eventually not harm WB but the creators, in this case 5th Cell and yes even you.

In the case of a Nyan cat or Keyboard victory it will result in a possibly worse version of copyright law. It's basically the Russian way of winning a war, by clogging the gears of your enemy with your own dead.

This world is full of some proper greedy shits, makes me sad...

I don't know about anyone else but I'm Waiting for the Worms.

To be honest, my gut reaction was never "boo, you greedy buggers" it was "good for you" simply because I thought it was about time a big shot like WB got a taste of their own medicine. I'm in total support of people protecting their creations, demanding compensation, etc but not to the point where it hurts anyone. I kind of like the "use it however you like as long as you give full credit and don't make a profit on it" thing. That seems fair to me.

1337mokro:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.

True it's fun to see Warner Bros get a taste of it's own medicine, but this would be even worse if the Nyan cat and Keyboard cat people win. I seem to remember Batman showing up in one of your episodes, be that in clip or in costume. That would then have a legal precedent to get your ass sued off, after all I presume the escapist is paying you, what they pay you with is not really important but you are making a profit whilst using trademarked or copyrighted images in your work. This would eventually not harm WB but the creators, in this case 5th Cell and yes even you.

In the case of a Nyan cat or Keyboard victory it will result in a possibly worse version of copyright law. It's basically the Russian way of winning a war, by clogging the gears of your enemy with your own dead.

I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.

Machine Man 1992:
First, beyotch!

I hope the warning you're going to get was worth it.

OT: I didn't hear about the Scribblenauts thing.

My stance on the subject is that if the NyanCat and KeyboardCat guys tried contacting them to sort it all out and were subsequently ignored, Warner Bros. deserves whatever they get out of all this.

What? I'm totally not still bitter about WB shutting down that free Middle Earth total conversion mod for Skyrim...

I haven't watched the Jimquisition in a very long time, but I'm really glad I tuned into this episode. I think that Jim brings up some very good points, especially where he outlines that there is truly a difference between the copyright holders of Nyan Cat and Keyboard Cat coming from a very different place on this than a multinational corporation like the WB does when it demands blood for any perceived copyright infringement.

Chessrook44:

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

This reminds me of another semi-famous instance that was similar. Bill Waterson was the creator and owner of Calvin and Hobbes, and was against doing any sort of merchandising aside from one or two calendars and a few collection books. Well some people made those Calvin Peeing stickers you occasionally see on truck windows or the like. Bill copyrighted Calvin and Hobbes, but by then, it was too late. The judge ruled against him, saying that "Well you should have copyrighted sooner." And that's kinda what's happening here. WB used the images, the cat owners copyrighted them after, and most likely a judge will say "Well, you're kinda too late here."

This is compared to when WB has videos copyrighted, and then goes after people who post that copyrighted material after it was copyrighted. Unfortunately, it seems like WB might end up on top here, and they'll just have a big grin on their face that they got away with it.

"Don't steal everything from the internet. Just steal what hasn't been copyrighted yet. They can't prosecute us for that."

I came into the thread to say this exact thing basically. As much as I don't like Warner Brothers, If the meme guys filled copyright after Scribblenauts then they don't have a legal leg to stand on.

It's sad when those who have the money used to make the system seem to be impervious to its own hypocrisy. However, this is the sad truth of the systems in place nowadays - if you have the monetary means, you can be exempt from all of the bullshit surrounding you. The whole "Screw The Rules, I Have Money" thing.

Don't misunderstand me - if these creators are, indeed, worthy of recompense, then it stands to reason, moral and legal, that they should be compensated for the uses of their work. It's just after seeing nonsense like this happen over and over again, I wish this whole fething mess of a system gets obliterated, Exodia style, and then rebuilt so that it favors the creators, regardless of their net worth.

I realize that while greed exists this is a pipe dream, but still...!

Also, as far as the whole SEGA & Gearbox lawsuit goes, they showed a product "in progress". Now, is it possible that by proving that the game "regressed" instead of "progressed", it was misrepresented and, therefore, constitutes false advertising? I am not versed in law nor am I proficient in 'legalese', any clarification would be appreciated. Thanks in advance.

I agree with you 100% both on WB deserving it and copyright law is a mess. Copyright law is stacked so much for the big guys to keep coining it in, Disney were a huge part in extending the length of copyright, which is so hypocritical since so many of their films are based on books that were copyright free.

Yes, I agree that these companies finally deserve a taste of their own medicine, but I don't think it will matter that much for now.

On the subject of copyright law and 'protecting the artist's work', this is a tangentially related video I think, which provokes some interesting thoughts.

Got to love how this is the same WB that, in exercising THEIR copyright, is preparing to -- if they haven't already -- remove all their shows and movies from Netflix. So, they definitely still know when and how to exercise copyright, just a little more vague on who is allowed that privilege.

The whole thing still leaves a bad taste in my mouth since the copyright system is beyond broken but glad to see the comparatively little guy screwing over a corporation at least once.

Why do I have a bad feeling the courts will set some new precedent that basically boils down to, "well they have more money so there." Right, because that's the case more often than not...

Jimothy Sterling:

1337mokro:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.

I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

Plus, last I checked, Willem Dafoe wasn't copyrighted.

Fair use is a fairly troublesome thing, and is largely subjective and unequally enforced (yet another reason why copyright law is all kinds of fuggered up). I honestly don't think that a WB defeat would mean any sort of significant change in how copyright is handled...I honestly doubt it'll even stop companies like WB from pirating material to any serious degree. I think it will result in a bit of catharsis from those of us who think that copyright law is unfairly weighted in the favor of massive companies that simultaneously attempt to bludgeon content creators with bags of comedy oranges while doing the exact same thing that they're orange-bludgeoning people for.

The trademark copyright for nyan cat was objectively and factually filed AFTER the games release.
This is not a hiccup on dates this is the actual truth.

Chessrook44:

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

This reminds me of another semi-famous instance that was similar. Bill Waterson was the creator and owner of Calvin and Hobbes, and was against doing any sort of merchandising aside from one or two calendars and a few collection books. Well some people made those Calvin Peeing stickers you occasionally see on truck windows or the like. Bill copyrighted Calvin and Hobbes, but by then, it was too late. The judge ruled against him, saying that "Well you should have copyrighted sooner." And that's kinda what's happening here. WB used the images, the cat owners copyrighted them after, and most likely a judge will say "Well, you're kinda too late here."

This is compared to when WB has videos copyrighted, and then goes after people who post that copyrighted material after it was copyrighted. Unfortunately, it seems like WB might end up on top here, and they'll just have a big grin on their face that they got away with it.

"Don't steal everything from the internet. Just steal what hasn't been copyrighted yet. They can't prosecute us for that."

Do you have a link or something to a Judge saying this? Everything I saw just indicated that the infringment was very wide spread before he reacted, so it was simply impossible to stop it. There wasn't a legal problem.

You don't have to register to own the copyright on something, you just have to create it in the US. You own the copyright on anything you create. Not registering it can have an effect on how much you can win in a civil case though. So, the late filing might affect the damages, but the WB could still be forced to remove the content.

Does anyone know if the game has other similar content? If you ask for Mickey Mouse, do you get that? I'm guessing not. If so, the WB should have respected all copyright, not just those of its fellow MPAA members.

As Jim said, "parody" and "fair use" really don't seem to help much here.

For how WB continues to fuck over the Schuster and Seigel family, they deserve this kind of thing for at least 80 years

He's the problem, right, they ARE totally being greedy about it, but it's also not entirely their fault. I'm friends with the owner of Level-Up Studios, who used to own the sole merchandising rights to both memes. The duo have a lawyer they go through, and even after signing a contract on the merchandising deals, the lawyer called Level-Up routinely, pissed off and claiming they were being ripped off. (A claim that only they made, while Level-Up mantains numerous other accounts, such as Edmund McMillan and Riot Games) Apparently, this lawyer has been trying to file any lawsuit that is even remotely plausible for a cash grab.

As for their use in Scribblenauts, personally I fail to see how this can not fall under Fair Use as satire? They are not a prime focus of the product, they are not there to garner additional sales, they are not the exact products themself. The keyboard cat sprite is just a cat playing a keyboard, and that doesn't have a leg to stand on. Nyan Cat is the same thing as the meme, but not the exact sprite, so you could also call it close parody. As many have said before me, if it's okay for Nyan Cat to become the point of a suit, can it's Pop-tart body become the point of a case by Kellogg's?

I'm going to work off the assumption that the copyrights were filed before the game was released, because that is one of the fundamental elements of a law suit that lawyers tend to notice and failing to notice that is one of those things that could lead to sanctions against the attorney. But if the dates really don't work in the plaintiff's favor on this one, then the case will get dismissed quickly and we can all move on with our lives.

"More importantly, this to me, at least where warner brothers is concerned is fucking justice. Companies like WB have for a long time considered the internet a den of thieves out to steal from them"

Jim, this has very little to do with WB and whatever it has done in the past, say what you want about those things sure but for the sake of cthulu will you have the decency to not use this as an argument and pretend that "justice is being served" because it really isnt.

You are wrong, both objectively and factually because this video is MISINFORMATIVE.

The game WAS and ALWAYS WILL BE objectively and factually released BEFORE the trademark copyright of the Nyan Cat was even filed, this cannot be denied.

The only people this can hurt is us, the gamers and the internet.

1.If this is succesful then companies will have even more reason to believe that we're a bunch of thieves out for money and to steal whatever we can take just because we can

2.If this is succesful then things like scribblenauts, good games, will not be possible in the future

3.References, eastereggs and any kind of hint at anything will not be possible in any game

Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?

shrekfan246:

Machine Man 1992:
First, beyotch!

I hope the warning you're going to get was worth it.

OT: I didn't hear about the Scribblenauts thing.

My stance on the subject is that if the NyanCat and KeyboardCat guys tried contacting them to sort it all out and were subsequently ignored, Warner Bros. deserves whatever they get out of all this.

What? I'm totally not still bitter about WB shutting down that free Middle Earth total conversion mod for Skyrim...

Since this i the only time I've gotten a warning for a "first!" post ("consistency, what's that?" asked the moderators), and the second time ever I've been first poster, I'd still call that a win!

OT: So this is the first time I've ever heard of a lawsuit about internet memes, but I'll still say that I love any chance to take down capitalist pig dogs!

For me, it just seems like a battle between two bastards. Personally, I don't think these two meme "creators" are really in this for anything but the money, and definitely not the "We'e fighting for the little man" like I've seen said about this whole fiasco but like you have also pointed out it's good to see WB stung by this, when they were a driving force behind these sorts of laws in the first place.

My main worry is though, if this is successful, will people be allowed to reference anything any more, without fear of being sued. Some of my favourite parts of games are little easter eggs that perhaps maybe reference other games and things like that.

So yeah, like I said, battle between two bastards.

After seeing what Jim has written, I'm now on the side on the Nyan Cat/Keyboard Cat guys, even if the reason they are doing this is mainly money based.

Lord_Gremlin:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.

That sounded more like a "Waaaah! Taking it down would be hard!" He bring up Scribblenauts being older than Nyan Cat's copy right, but last I checked Nyan Cat didn't even EXIST until 2011, so of course the game pre-dates the copyright. While copyright laws can be ridiculous, I feel that the creators are entirely justified since people will be making money off the product. They clearly don't care about people making fun of it, making homages, satire, or any of that as evidenced by ALL the comics and videos about the Nyan Cat, so I really don't see a problem. They drew/filmed it. They copyrighted it. They own it.

Jimothy Sterling:

DVS BSTrD:
Except for the fact that the game was released BEFORE the copywrite was even filed.

According to the creators, the legal blog that initially reported this suit got all the dates wrong.

They did get the dates wrong. However, I looked into it myself, and the first game was still released before either property was filed for copyright or trademark, at least in the US.

One thing I noticed in the complaint is that it mistakenly lists Keyboard Cat's copyright number for both properties, leaving Nyan Cat's number out entirely. I'm not a lawyer, so I don't know if this will actually impact the lawsuit in any meaningful way, but it's worth noting, anyway.

Not that it even matters who's right and who's wrong. WB will settle this out of court because it's easier and cheaper, and the story will reach a silent conclusion as such things often do.

P.S. Thanks

The Keyboard Cat copyright wasn't active before the first Scribblenauts game was released so at least that one's safe. Dunno about the other games.

I dunno Jim, this episode was more about you politics and proving a point rather than about facts. I agree with the point but being potentially disingenuous to push an agenda doesn't seem like a great idea. Also Lock's Quest is a great game, but they reference Metal Gear, so I guess Kojima should sue them :P.

By the way who's that pink greedy bastard, he seems familiar...

Why are people constantly bringing up the first game in the series? The lawsuit isn't just about the first game in the series, so it existing before the Nyan Cat copyright has very little to do with it.

Jimothy Sterling:
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.

Right now I really don't see the positive here it just slays one monster only to have a bigger one with more things to DMCA spawn from it.

They were ALMOST completely identical, they did use their own art assets. Which is why I am saying that this MIGHT not end up as favourably. Any iteration of the copyrighted/trademarked thing might spark a suit or a take down. Simply because they have more ground now to "suspect" (read abuse) things for "infringement" (read not giving them money).

Yes copyright law is the best example of corruption and corporations have been given so much rights that they abuse without consequence that it makes me sick. That is why I want to give them as little ground as possible to get even worse.

You have a point about the differences though, but if it was all about being included in the credits or simply being treated properly, why are they suing for damages on top of lawyer fees?

Jimothy Sterling:
Why are people constantly bringing up the first game in the series? The lawsuit isn't just about the first game in the series, so it existing before the Nyan Cat copyright has very little to do with it.

Because people are looking for some way to call the guys greedy and say their lawsuit has no leg to stand on.

I'm with Jim on this one

Fair use is one thing (you wanna use a video clip or an image in your free web show, fine. hurts no one), but a company that sends out DMCA take-downs on whim, only to turn around & use copyrighted materials without so much as a source credit? Cannot be allowed

Intellectual property law is a mess & people exploit it, we can all agree on that; all the more reason to take the worst offenders to task

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