Jimquisition: Lawsuits, Memes, and Tasty Medicine

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Lots of people are talking about copyright filings, and how Nyan Cat's copyright was filed after the game was released. To be clear, everything is copyrighted as soon as it's created. This only reason to actually file a copyright with the government is that it allows creators to prove when something was created.

For instance, everything I've written right here is copyrighted, and I own it. I cede some of my rights to The Escapist so that they can legally reproduce and publish this comment, as agreed upon when I signed up for the forums. But I still own it. I could write an epic novel here, and no random person is allowed to come along and publish that novel because I own the copyright.

And, if I choose to file a copyright on that novel later, it doesn't "move up" the date of creation to the time of filing.

So, all these creators have to do is prove that they created Nyan Cat and Keyboard Cat prior to when Scribblenauts "created" the offending characters. And there's ample evidence that Nyan Cat was uploaded to YouTube in April 2011 and Keyboard Cat was originally recorded in 1984. The problem Keyboard Cat is going to have is that Charlie Schmidt (the original creator) has gone on record saying that anyone can use Keyboard Cat with or without permission, thereby effectively putting Keyboard Cat into the public domain. Nyan Cat, however, has no such problem.

Monxeroth:

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?

1. Why? This is a dispute between a creator and a publisher, not customers. I think you're drawing a knock-on effect from whole cloth. You're telling me my video is misleading, but you offer an assumptive prediction as counter. That's hardly better.

2. No ... they'll be entirely possible. Scribblenauts itself says in its disclaimer that copyrighted material is not possible. You can't, for example, conjure up the actual Solid Snake or Mickey Mouse in the game. Being unable to do so hasn't destroyed Scribblenauts so far, has it? Again, you've assumed something based on nothing.

3. References and easter eggs are totally different from including an entire named copyrighted character. You can *have* something in a game that looks maybe a little bit like the Terminator. You cannot have The Terminator. That precedent already exists, and this lawsuit isn't inventing a new precedent.

orangeapples:

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.

Which month?

Heroes of Newerth (a MOBA) sells a skin for a courier that is Nyan Cat for currency that is only obtainable via IRL money.

They've... used 'popular culture' before with various skins. I'm just hoping this law suite might make S2 Games themselves be, more careful with regards to these things. Given that DOTA2 and LoL are significantly more popular games. It'd be a shame if HoN's reputation suffered from S2's ignorance.
-
I'm on the side of protecting intellectual property. Just because something becomes a Meme, doesn't mean the creator suddenly loses ownership of the associated image. I don't mean GOD FORBID U NO BREECH COPYRITE. I mean, ask permission nicely. If you explain your intent fully, a lot of the creators will say "yes".

While I dislike Warner Bros almost as much as Jim, he really hasn't thought this one through.

If ths lawsuit succeeds, the implications are potentially very negative, it could mean the end of any sort of cultural references, and Easter Eggs in video games. The world would be a duller place if that happened.

Also I don't think he's right about 5th Cell. I don't actually know who holds the licence to it as it's published by Konami in Japan, and WB Games in the West. Assuming WB are liable for this and they have to pay up, I still don't think 5th Cell will be ok. After being dragged through the courts and made to pay out, do you really think that WB Games would publish another 5th Cell game?

People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."

I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).

This is action movie 'justice' at best -where the bad guy gets his comeuppance via the same methods he used against the good guys and as cathartic and satisfying as that may be, let's face it; WB is NOT going to stop trolling the internet for mere hints of their copyrighted materials. I get that you are pleased that they're being bit by their own hypocrisy but this is ultimately not helpful and doesn't change anything.

Now, I'm not going to accuse the creators or Nyan Cat and Keyboard Cat of being greedy. As a content creator myself, I'd probably have a Goddamn conniption if I saw someone getting paid while using things from my work without permission...but mostly because they'd stand to make more money from a product that uses my work than I ever would from my work itself. I would hope that we could all agree that would kind of suck (for the content creator, at least).

Azuaron:
Lots of people are talking about copyright filings, and how Nyan Cat's copyright was filed after the game was released. To be clear, everything is copyrighted as soon as it's created. This only reason to actually file a copyright with the government is that it allows creators to prove when something was created.

Someone else understands! Yeah, a legal copyright filing is just a registration. If you can prove your creation predates the infringement--say, with a YouTube upload that long predates the infringing game--you have a solid case to defend your copyright.

senordesol:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).

Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.

senordesol:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).

Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.

(Er, whoops, accidental double post. Sorry about that.)

i suppose, while i still don't particularly like the conditions of this lawsuit...Jim makes me think this is a necessary thing in the long battle for eventual copyright reform so bullshit like this is more reasonable/fair for the internet age.

After all if the big companies can get screwed buy the fucked-up way US copyright law works there may be a push for reform sooner rather than later. It will be an interesting few years anyway since I believe Micky mouse is approaching the copyright line where he will go public domain...meaning Disney will throw its weight (again) to have yet another extension on him because there's no fucking way they will give up Mickey without a fight, making copyright yet more unreasonable.

I suppose my thought regarding this case regarding "should" not the material facts...should people really 'own' memes like this? I mean the only reason they would become memes in the first place is because people take em and share them around with each other. Would that mean that any variation of the it like Nyan-TARDIS or whatever should be taken down?

I don't agree with you, and don't see the point of this rant...
You act like this was a singular case and it is justified because "its a big company", but easter eggs and references are common in this industry, and only because WB is being sued now, its legitimate?

For example:
- Guacamelee was released recently and had dozens (if not hundreds) of references to sites, memes, other games and public domain jokes, some of them for famously unfriendly companies in terms of sharing their IPs (like Nintendo).. but I don't think they contacted any of the copyrighted material owners, so they are liable to be sued.
- Borderlands and (especially) Borderlands 2 had a lot of the writing being derivative of memes, internet jokes or catchphrases from TV shows (like having a character spew "cool story, bro" every few seconds), so that should make Gearbox and its writers huge targets for lawsuits. They even included the dancing alien from spaceballs (itself a reference to, gasp, WB's Michigan Frog) in Colonial Marines, so Mel Brooks should sue them.
- Bethesda included a reference to Minecraft (the Notch Pickaxe) in Skyrim. Given their less than amicable relation (Bethesda suing Notch for the use of the copyrighted word "scrolls"), I doubt they were given permission... So, I guess Notch should sue them for it.

Those are just some examples, from the top of my head, or other possibly dozens more... each one having about the same validity than this case. Yet, since this is 7th Cell (a big developer) and they are just poor guys who want to profit of their totally original creations, this is different? No, this is not different. This is like Tim Langdell (a small guy) suing EA and Namco (big corporations)... how did that ended up?

I'm a little torn on this one, I am happy that the "little guy" is getting his voice heard but Nyancat is a freaking POPTART isn't that a copywritten/trademarked thing? if it is fair that they can sue WB for this could kellogg's come along and try to sue the nyancat creator? would that be fair?

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

What? Why? Does Scribblenauts not work just because you can't include copyrighted items without permission? How are those even necesary for the basic gameplay involved?

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?

That's very, very clearly a parody. Jay-Z is not going to sue anyone over that. The issue here is that the use in Scribblenauts was not a parody; they're simply just in there. You can't just stick Mickey Mouse into something as "a reference". You have to in some way parody the character to say something about him or about Disney (like South Park's use of the character). The fact that Scribblenauts is generally a funny game has no bearing here either because parody doesn't simply mean "funny"*. They weren't making any kind of point at all except that they wanted the characters in their game. You can argue that they just didn't know the creators would care, but that goes out the window when they refused to deal with them after the game was released.

The only way games are affected by this case if is won or settled in the creator's favor, is that big corporations won't so freely take things that your average person creates. They'll actually have to follow the same rules that they follow when dealing with other large corporations.

You know why you rarely hear about a lawsuit like this between big companies? Because they have legal teams that carefully review works before they are released to avoid lawsuits. These legal teams apparently decided that since Nyan Can and Keyboard Cat were both created by some schmoes, so feel free to take whatever you want. Also, those legal teams would still care even if the work had not been registered since it could still cause legal trouble for them when it is clear that they did not create the work.

* For example, if you took one of Jay-Z's songs and simply sang lyrics about tacos over it, you are probably not covered by parody. Unless it is widely known that Jay-Z, like, really loves tacos or something.

HalloweenJack:

senordesol:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).

Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.

Is it not parody, though?

A very well done video on the issues with our copyright...since its relevent here...

Holy shit, the level of idiocy in this thread is staggering:

It's not an easter egg. It's not a reference. And for the last time it's not invalid because the First Scribblenauts-which was made before the videos even came out, was released and copyrighted first. (if that were how copyright law worked then there'd be nothing to stop Dr. Who from ripping off every other sci-fi series because "LOL our copyright is older!")

It's blatant use of copyrighted material without the slightest alteration, commentary, parody or thought besides screen-capping the two characters and inserting them into the game. Absolutely no creative effort was used. And WB showed no interest in even acknowledging that someone came up with it and would like credit where credit is due.

For how much the escapist loves to nash its teeth when game companies act like assholes, it's weirdly eager to defend them when someone finally calls them out on their bullshit. Stockholm Syndrome anyone?

senordesol:

HalloweenJack:

senordesol:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).

Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.

Is it not parody, though?

No. Per the US Supreme Court, parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works."

This should most certainly fall within fair use. They aren't including any original assets.

http://upload.wikimedia.org/wikipedia/en/thumb/e/ed/Nyan_cat_250px_frame.PNG/220px-Nyan_cat_250px_frame.PNG

http://www.blogcdn.com/www.joystiq.com/media/2013/05/nyancathd.png

It is a parody, or more specifically in this case a visual arrangement. But that is insignificant to my point.

You can't have it both ways here either Jim. You can't be happy to see a big company being sued for something that is even arguably fair use but cry foul when a big company is suing a little guy for the same reasons. They flaw in your argument is that you are arguing 2 wrongs = right.

I'm a huge proponent for copyright reform (specifically when talking about software patents, as its disgusting the way these laws are abused by big companies) but it is incredibly hypocritical to be against companies doing this to the little guys, but to be for the little guy doing it to the big guy.

It sucks that WB and 5th Cell didn't respond to the creators of Nyan cat and Keyboard cat, and I would be supportive of a lawsuit to teach larger companies a lesson, but only when that law suit has real merit. Like if that guy who had his youtube channel closed because NBC filed a copyright complaint against him before Leno used his actual youtube video during Leno's show. That is the time to sue a big company for overreaching with copyright law. So if they used physical assets in the game, then I would support a lawsuit against them. But I really feel that 5th cell's inclusions of them should fall under fair use as much as using meme's within your own video's to illustrate a point. Since you are also creating videos for money.

I often do agree with your positions, but here not even close.

(Also let me settle the copyright thing right here, yes copyright is enacted at the moment of publication of your own work, but you cannot sue until it is registered. And when you sue retroactively to the copyrights registration it is limited what you can actually sue for, you can read more here, http://www.copyright.gov/help/faq/faq-general.html )

Jimothy Sterling:
People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."

Aye, this apparently is concept that can only be understood by people with PhDs. Perhaps a public service announcement video would be in order to educate the lesser fortunate? You could have funny little finger puppets to explain it!

hermes200:
I don't agree with you, and don't see the point of this rant...
You act like this was a singular case and it is justified because "its a big company", but easter eggs and references are common in this industry, and only because WB is being sued now, its legitimate? For example:
- Guacamelee was released recently and had dozens (if not hundreds) of references to sites, memes, other games and public domain jokes, but I don't think they contacted any of the copyrighted material owners, so they are liable to be sued.
- Borderlands and (especially) Borderlands 2 had a lot of the writing being derivative of memes, internet jokes or catchphrases from popular TV shows (like having a character spew "cool story, bro" every few seconds), so that should make Gearbox and its writers huge targets for lawsuits. They even included the dancing alien from spaceballs (itself a reference to, gasp, WB's Michigan Frog) in Colonial Marines, so Mel Brooks should sue them.
- Bethesda included a reference to Minecraft (the Notch Pickaxe) in Skyrim. Given their less than amicable relation (Bethesda suing Notch for the use of the copyrighted word "scrolls"), I doubt they were given permission... So, I guess Notch should sue them for it.

Those are just some examples, from the top of my head, each one having the same validity than this case. Yet, since this is 7th Cell (a big developer) and they are just poor guys who want to profit of their totally original creations, this is different? No, this is not different. This is like Tim Langdell (a small guy) suing EA and Namco (big corporations)... how did that ended up?

The issue is not references, it's the inclusion of the actual character in the game. Were I to make a game, I could reference Bugs Bunny, possibly with an anthropomorphic rabbit saying a similar catch phrase to Bugs, but I would not be able to include Bugs Bunny directly. If I did, Warner Bros would sue me for copyright infringement.

What the hell is that at 3.54?! It is absolutely terrifying.

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.

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.

They really did that? :/.........Why? Isn't that kind of like free advertisement?

Anyway, I'm with you Jim. The precedent is already here, so it would be nice for the creators to get bitten by their own monster for once.

Thank God for you, Jim. :)

-Dragmire-:

hermes200:
I don't agree with you, and don't see the point of this rant...
You act like this was a singular case and it is justified because "its a big company", but easter eggs and references are common in this industry, and only because WB is being sued now, its legitimate? For example:
- Guacamelee was released recently and had dozens (if not hundreds) of references to sites, memes, other games and public domain jokes, but I don't think they contacted any of the copyrighted material owners, so they are liable to be sued.
- Borderlands and (especially) Borderlands 2 had a lot of the writing being derivative of memes, internet jokes or catchphrases from popular TV shows (like having a character spew "cool story, bro" every few seconds), so that should make Gearbox and its writers huge targets for lawsuits. They even included the dancing alien from spaceballs (itself a reference to, gasp, WB's Michigan Frog) in Colonial Marines, so Mel Brooks should sue them.
- Bethesda included a reference to Minecraft (the Notch Pickaxe) in Skyrim. Given their less than amicable relation (Bethesda suing Notch for the use of the copyrighted word "scrolls"), I doubt they were given permission... So, I guess Notch should sue them for it.

Those are just some examples, from the top of my head, each one having the same validity than this case. Yet, since this is 7th Cell (a big developer) and they are just poor guys who want to profit of their totally original creations, this is different? No, this is not different. This is like Tim Langdell (a small guy) suing EA and Namco (big corporations)... how did that ended up?

The issue is not references, it's the inclusion of the actual character in the game. Were I to make a game, I could reference Bugs Bunny, possibly with an anthropomorphic rabbit saying a similar catch phrase to Bugs, but I would not be able to include Bugs Bunny directly. If I did, Warner Bros would sue me for copyright infringement.

In that case, the keyboard cat has no ground...

So are they going to sue everyone who has used it like the girls who sell earrings on twitter and stuff...

I don't know this just comes across to me as really petty.

It's pretty clear that WB thought taking those characters was safe for them, and that the law is different for big corporations, but I'm not sure if at least the keyboard cat is actually copyright-infringing.

Wouldn't it fit under fair use, since it's a cartoon-version of a well-known meme? Wouldn't it be considered parody? Couldn't I photograph a cat doing the same and include it in my movie or something? Of course that would mean that if that's allowed, having characters like Mickey Mouse with different than usual art-style would be okay as well.

Clovus:

senordesol:

HalloweenJack:

Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.

Is it not parody, though?

No. Per the US Supreme Court, parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works."

Having not played the game and, ergo, no idea as to the nature of the inclusions, I admit that my argument is weak here -- but 'commentary' can mean multiple things. Are KBC and NC doing anything apart from what it is they're known for? (i.e. can the Player 'ride' Nyan Cat or something?)

Then again, the legal line might be a little blurry here (which is why lawyers are paid so very well to clarify it). For example: Obviously silver had to cross a few palms when Star Wars characters were featured in Soul Caliber -even if they weren't advertised as features in the game but just as a secret unlockable someone would have had to get paid. But what if it was just some dude with a lightsaber?

So I guess where the legal hairs get split is what counts as a 'reference' and what counts as a 'feature'? Does being able to summon a character on-demand to do the thing it's famous for count as a feature? I weight it pretty heavily as 'yes'. And as such, it's creators should definitely get paid for it. On the other hand though, references and parody tend to have a pretty wide berth.

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 the first game was included in the formal complaint. The lawsuit may not just be about it, but the game is still included, and it does absolutely show that it was hastily and sloppily written. Don't get me wrong, I absolutely agree that they deserve compensation, but they are clearly trying to push their limits and get more than they deserve. That's what really bugs me about this; if they'd gone about this correctly and left it out (not to mention possibly bringing this up sooner instead of waiting for more games to lump into the lawsuit) I don't think it would get nearly the backlash it's gotten.

P.S. Thanks

hermes200:

-Dragmire-:

hermes200:

The issue is not references, it's the inclusion of the actual character in the game. Were I to make a game, I could reference Bugs Bunny, possibly with an anthropomorphic rabbit saying a similar catch phrase to Bugs, but I would not be able to include Bugs Bunny directly. If I did, Warner Bros would sue me for copyright infringement.

In that case, the keyboard cat has no ground...

That, I have no idea about. This is the first time I've heard of this keyboard cat thing.

senordesol:

Then again, the legal line might be a little blurry here (which is why lawyers are paid so very well to clarify it). For example: Obviously silver had to cross a few palms when Star Wars characters were featured in Soul Caliber -even if they weren't advertised as features in the game but just as a secret unlockable someone would have had to get paid. But what if it was just some dude with a lightsaber?

So I guess where the legal hairs get split is what counts as a 'reference' and what counts as a 'feature'? Does being able to summon a character on-demand to do the thing it's famous for count as a feature? I weight it pretty heavily as 'yes'. And as such, it's creators should definitely get paid for it. On the other hand though, references and parody tend to have a pretty wide berth.

I think you avoid legal trouble by not calling it a lightsaber. For example, in Terraria they're called phaseblades and in several games and shows, they're called beam swords.

AgentLampshade:
What the hell is that at 3.54?! It is absolutely terrifying.

It appears to be the Sony Ericsson Xperiathon Ad. Using the "forever alone" meme.

More information on the forever alone meme here: http://knowyourmeme.com/memes/forever-alone

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

Copyright in the states is opt-out, not opt-in.

You don't actually need to file for copyright to have copyright. You can file for copyright, which offers additional features (such as covering legal fees for contestation), but those aren't necessary.

Trademark (which, to be clear, this case is at least partially about) is opt-in, but can be filed after the fact and is still largely valid. WWE is a good example of a body who's successfully sued for trademark violations on trademarks acquired after-the-fact.

The problem here is an issue of dillution, and the status as an internet meme may be the biggest challenge to a trademark claim.

CrazyCapnMorgan:

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.

They didn't show a game in progress. They showed a completely different entity.

The Grim Ace:
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.

Well, that's the thing. They don't have a problem with copyright, they just don't care unless it's theirs.

Matthew Abbott:

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

Celebrities do have certain rights, however.

On the other hand, this is a depiction of an action figure of questionable likeness portrayed for parody purposes, which probably gives Jim a wide array of defenses not available to the Scribblenauts folks.

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.

Smarter or not, he doesn't seem to have a very solid argument. They wanted it to be a complete game, yet they actively refuse proper service marks if you try and use them (barring certain licensed characters). Not to mention "WAAAAH! Slippery slope!" and his failure to understand the difference between a reference and the thing itself. And the fact that he doesn't understand what punitive damages reflect.

Look, I understand TB is fairly firmly in the corner of the gaming industry and justifies stuff. He's even rabid enough to remove dissenting opinions even when they cite legal reference or other FACTS. Maybe you are, too (It's hard to tell when someone just copies a link to someone else's opinion with no real input to offer themselves), but that doesn't make him accurate here.

I actually don't get why he's so upset that gaming might be hurt by this, when companies like WB ARE in fact so aggressively controlling of creative content that they don't even need to own the content before going after it.

Thing about memes is that it's hard to tell where it originated and giving proper credit where credit is due... Not to mention, most people use memes the same way new Family Guy and the Scary Movie franchise uses it's jokes: with absolutely no context and expecting a mere reference to whatever subject to be a stand-in for actual humor or thought. That's probably why content creators hate memes so much... they consider it "disposable entertainment", least that's what I assume.

Jimothy Sterling:
People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."

Maybe because that's the primary method in which most memes are used? Not that your wrong, but it would help in understanding why this confusion exists.

As much as I love to debate about file-sharing, and how much bullshit the laws regarding that are, yeah, this is basically a much more significant issue. Ther is an easy way around copyright trying to control our personal internet access, namely the fact that they are technologically incapable of doing it anyways.

But with the overuse of copyright claims in commercial works, it's riiculous to think about how much they are actually stifling creative work under the claim of protecting "their property".

Whether it's WB taking down fan videos, SSega taking down Jimquisition episodes, or these guys taking down Nyancat from Scribblenauts, it has came to a point where there is basically a huge amount of censorship on all products that are to be released commercially, and even if you don't plan to release it commercially, you can be literally forced to stop creating by C&D letters, just for including pre-existing characters, settings, or basically any element of 20th-21th century popular culture.

Just imagine how much more entertaining Scribblenauts could be, if you could actually objects and characters that appeared in movies. Imagine how easier writing would be, if artists wouldn't have to worry about their new works somehow "taking away property" from each other (or more likely, from corporations).

If it would depend on me, Fair Use would be an actual law instead of a doctrine, and it would be defined as "every newly produced creative work that is neither a direct replication of an earlier one, nor so similar that the average viewer consider it to be the same."

Imp Emissary:

Jimothy Sterling:

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.

They really did that? :/.........Why? Isn't that kind of like free advertisement?

Publishers are amazingly irrational in that regard. They pretty much placed profitability as a secondary issue, compared to having direct control over data usage.

For example, even if Fair Use would be interpreted so widely as I said above, that it would reduce IP to the specific works themselves and all "universes" would be free to use by anyone, the Big Five movie studios would have much more options than they have now: Spiderman could appear in The Avengers 2, the fucking Justice League could appear in Avengers 2, Sony could make it's own Harry Potter reboot, everyone would be making various Star Wars EU adaptations contradicting each other, and generally, they would continue to be the Big Five, and all get ridiculously rich from giving people what people want, using their big budgets.

The price of this would have to ignore that other people, not just the other four, butsmall fries and indies, are "touching their stuff" and using their own franchises as explicit inspirations.

so instead, they are grabbing with all ten at every possible controllable concept, just so they can spend millions constantly circle-suing each other for the smallest details. Not because it's necessarily more profitable, but because at this point, they just get a kick out of controlling stuff.

Zachary Amaranth:

CrazyCapnMorgan:

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.

They didn't show a game in progress. They showed a completely different entity.

And here's, perhaps, a slippery slope argument towards this: what was presented and what was the final product are both similar. Though the quality is drastically different, nothing but the visual content was altered; unless there was a playable demo released to the public, in which case my previous statement is null and void. Also, when the demo video was released to the public, there was a message in the bottom of the screen "work in progress" or something to that effect. Both things presented, at demo trailer and launch, were games of the Alien franchise. So, unless both products were different in a magnitude that proves beyond a shadow of a doubt a complete reworking of their product, I'm not sure the lawsuit has enough merit.

To be clear, I personally believe SEGA and Gearbox are in the wrong, I just don't know (and completely comprehend, to be honest) if such a thing can be proven within the confines of the legal system.

Azuaron:
To be clear, everything is copyrighted as soon as it's created.

As true as this is, most people don't understand the difference between variosu IP laws and several people on this site will repeat the same stuff after corrected the next time the thread comes up.

scw55:

Heroes of Newerth (a MOBA) sells a skin for a courier that is Nyan Cat for currency that is only obtainable via IRL money.

Several groups have licensed Nyan Cat. Can you tell me for certain whether or not these folks have, since you are using them as an example? That would be a fairly important point for or against your argument.

Alfador_VII:

If ths lawsuit succeeds, the implications are potentially very negative, it could mean the end of any sort of cultural references, and Easter Eggs in video games. The world would be a duller place if that happened.

It would, were this merely a reference.

senordesol:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).

Jim's use seems firmly within the commentary/criticism category of fair use. I would like to know where you think Scribblenauts' use of Nyan Cat and Keyboard Cat fits. in the definition of fair use.

ZeoAssassin:

After all if the big companies can get screwed buy the fucked-up way US copyright law works there may be a push for reform sooner rather than later.

Yes, but the odds are they will further dice it in their favour. As it is, they've gerrymandered the situation grossly to their favour. What makes you think they would suddenly decide to play fair, rather than pushing for legislation that would remove the unfavourable scenario?

Moonlight Butterfly:
So are they going to sue everyone who has used it like the girls who sell earrings on twitter and stuff...

I don't know this just comes across to me as really petty.

Virtually nobody goes after stuff like twitter sales or etsys. I don't know why it seems petty that they wouldn't, either.

first of all the lawsuit wont really hurt WB it will hurt 5th Cell way more.

also think about the precedent this lawsuit will set if it's successful. Scribblenauts has a ton of references of all sorts of stuff, including internet memes like Nyan Cat, and keyboard cat and even fucking rickrolling, and all those references and easter eggs are fun and cool little things for us to enjoy. games finding ways to incorporate these sorts of stuff is creative, it's fun, and this kind of stuff is punishing that creativity, which is the last thing we need in an already stagnating industry.

there are plenty of reason to dislike WB, but they're not gonna get punished, 5th Cell is. they're gonna be punished for making an interesting game, THE BASTARDS!

these guys are just looking for some money

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