Nyan Cat and Keyboard Cat Team Up Against Scribblenauts

Nyan Cat and Keyboard Cat Team Up Against Scribblenauts

Scribblenauts lawsuit screen

The creators of Keyboard Cat and Nyan Cat claim Warner Bros. and 5th Cell infringed on their trademarks by including references to the memes as Easter eggs in Scribblenauts.

On the off-chance that you joined the internet yesterday and are thus unfamiliar with the Keyboard Cat and Nyan Cat memes, I'll begin by providing links to entries for both at Know Your Meme. The rest of you already know that these are two of the most famous memes on the net, famous enough, in fact, to warrant appearances in the hit game Scribblenauts and its sequels.

Alas, those appearances were unlicensed and unapproved, and that means it's time for a lawsuit. Charles Schmidt, the maker of Keyboard Cat, and Orlando Torres, the man behind Nyan Cat, have filed suit against 5th Cell Media and Warner Bros. Entertainment, the developer and publisher of the Scribblenauts games, claiming that neither authorized the use of their memes and seeking various damages, restitution profits, legal fees and all the rest of the usual.

"'Keyboard Cat' and 'Nyan Cat' are known and enjoyed by tens of millions of people. That popularity makes them extremely valuable for commercial uses. Unlike WB and 5th, many other companies, respecting plaintiffs intellectual property rights, regularly pay substantial license fees to use plaintiffs' memes commercially," the lawsuit states. "For the past three years, WB, along with game developer 5th, have knowingly and intentionally infringed plaintiffs' copyrights and trademarks by using 'Nyan Cat' and [Keyboard Cat] Fatso's image in WB's top selling Scribblenauts games, including, most recently, Scribblenauts Unlimited, which WB released in 2011. Compounding their infringements, defendants have used 'Nyan Cat' and 'Keyboard Cat,' even identifying them by name, to promote and market their games, all without plaintiffs' permission and without any compensation to plaintiffs."

Working against the meme makers, however, is the fact that neither meme was trademarked until 2010, a year after Scribblenauts was released. According to the Los Angeles IP Trademark Attorney Blog, that automatically disqualifies claims for attorney's fees and statutory damages; furthermore, because both memes were published more than five years prior to the trademark application, there is no "presumption of validity" of the copyright. (Read the riveting 17 USC 410 - "Registration of claim and issuance of certificate" for more on that.)

Keyboard Cat and Nyan Cat aren't the only memes to make an appearance in Scribblenauts; the Scribblenauts Wiki lists more than 40 of them, including Rickroll, Ceiling Cat, Dramatic Chipmunk, Cool Story Bro and the classic All Your Base Are Belong To Us.

Source: Los Angeles Intellectual Property Trademark Attorney Blog

Permalink

What is this? I don't even...

case closed then

should have thought about that before trying to make something that was public domain a property

Eh...ok, Nyan Cat maybe, a very distinctive flying popcart cat trailing rainbows, that's a thing.

A cat that plays on a keyboard? Not so much. Presumably if it was a dog playing the piano, Henson would sue because that's obviously one of theirs.

well, the song that nyan cat uses, it's not even theirs to begin with, so

poptarts ain't either

i doubt that they even own a cat

I was all ready to say that this is stupid and that once something has become an internet meme it's in the hands of The Peoples, but on the other hand, companies like Warner Bros. have attacked people for making stuff with their characters and putting it on the Internet for free, so why should they be able to get away with using other people's characters in a for-profit piece of entertainment? Turnabout is fair play, and the last thing we need is for IP law to literally be solely the domain of Big Media.

thaluikhain:
Eh...ok, Nyan Cat maybe, a very distinctive flying popcart cat trailing rainbows, that's a thing.

A cat that plays on a keyboard? Not so much. Presumably if it was a dog playing the piano, Henson would sue because that's obviously one of theirs.

I agree with this, Nyan cat is a very distinctive piece of artwork, you should not be able to copy it and use it as you like anymore than you could copy a Bigdaddy and use it in another game or TV show.

But a cats a cat, I could see if they imported the videoclip directly but referencing it should be fine

You can trademark and claim ownership over internet memes now? They mostly come from other media anyway so it's not like their 100% original.

If I'd unwittingly created an internet sensation I'd be chuffed that 5th Cell thought it was significant enough to be included in Scribblenauts.

Well someone better inform H. P. Lovecraft because Scribblenauts used Cthulhu too.

Proverbial Jon:
Well someone better inform H. P. Lovecraft because Scribblenauts used Cthulhu too.

He may or may not have waved his IP rights to get more people writing about his universe.

Even if he didn't, he died in 1937, and IIRC, copyright lasts 70 years since the death of the creator.

Well, really, Disney will make the US extend that, and the US will make the rest of the world extend that so they don't lose Mickey Mouse et al, but in theory that's how it works.

So they don't mind it being reused over the internet a million million times but they balk at an easter egg in a well meaning game?

Talk about greedy ugh.

Kalezian:

weirdguy:
well, the song that nyan cat uses, it's not even theirs to begin with, so

poptarts ain't either

i doubt that they even own a cat

it was originally a 8-bit lullaby song, but got replaced with some Vocaloid crap.

Also:

image

he makes comics that have the same cat in them, even making Nyanja Cat and NYR Cat.

This isn't the first time people have used his stuff either, Attack of the Shit Show made a very, very, stupid showing of one of his earlier comics.

not to mention the people at gaggingon9cheesburgers.lol who watermark the shit out of not only his but others comics and flash loops.

And yes, he did have a cat, Marty, who died in November of 2012, who was a basis of the numerous cat comics.

now dont you feel like a dick.

actually, it was the most reliable way to get somebody to google all of this for me

thanks

Moonlight Butterfly:
So they don't mind it being reused over the internet a million million times but they balk at an easter egg in a well meaning game?

Talk about greedy ugh.

This.

They'd better sue half of the internet for reposting their property and making it popular in the first place and get all of the theoretical internet dollars they are owed. Unless the designer of cats sues them first for infringing on their trademark!

Moonlight Butterfly:
So they don't mind it being reused over the internet a million million times but they balk at an easter egg in a well meaning game?

Talk about greedy ugh.

Personally if I had created something like that I'd be delighted that a well known company thought it was worth using in their game. I sincerely doubt that the inclusion of it made them any money anyway.

I doubt Schmidt and Torres are behind this; it has "lawyer" written all over it. I'd be willing to bet one or the other of their lawyers (Howard E. King, Stephen D. Rothschild) decided that he wanted more money, and coordinated this trademark-troll effort for his own share of the gain.

Sadly, WB and 5th Cell may settle, just because it's a quick, cheap, and easy way to end this. They deserve to win, but that won't necessarily happen.

P.S. Thanks

I was rolling my eyes through this entire article... until I read the part about them using it in the marketing & promotion; that changes the situation a bit

It's one thing to use a popular image in your work, it's another to use it as a selling point

Edit: Plus, Warner Bros dive head first into anyone that even thought about infringing their trademarks, so no sympathy there

If Nyan Cat is copyrighted, then fair enough. I don't see why it should receive any sort of legal exemption just because it's considered a "meme."

This sort of thing is pretty well covered under "fair use" doctrines which will leave these trolls with nothing but court bills, but luckily these guys have shown their true colors.

Fair use bros. You can just go suck on rocks.

I don't see Halo pissing and moaning because a set of Halo armour showed up in Duke Nukem. There's a difference between infringement and easter eggs, easter eggs that look considerably different mind you, so basically knock off references.

However if they did use it in marketing promos without permission then they should pay damages for that. However I have never seen as single one of these alleged adds or promo material so I'll wait and see what the lawyers can dig up. Maybe they will find their souls whilst sifting through the mud :D

thaluikhain:

Proverbial Jon:
Well someone better inform H. P. Lovecraft because Scribblenauts used Cthulhu too.

He may or may not have waved his IP rights to get more people writing about his universe.

Even if he didn't, he died in 1937, and IIRC, copyright lasts 70 years since the death of the creator.

Well, really, Disney will make the US extend that, and the US will make the rest of the world extend that so they don't lose Mickey Mouse et al, but in theory that's how it works.

Oh my bad; I felt sure it was 100 years after death.

Steve the Pocket:
I was all ready to say that this is stupid and that once something has become an internet meme it's in the hands of The Peoples, but on the other hand, companies like Warner Bros. have attacked people for making stuff with their characters and putting it on the Internet for free, so why should they be able to get away with using other people's characters in a for-profit piece of entertainment? Turnabout is fair play, and the last thing we need is for IP law to literally be solely the domain of Big Media.

IP law already *is* the domain of Big Content, the best these guys could do would be to play along with them by accepting their terms.

Just because Big Content's excessive and constantly expanding interpretation of copyright is evil, the little guys joining on the bandwagon with them still isn't any better either.

I just took a look through the complaint... there's a mistake in it. Keyboard Cat's copyright number (PA0001696099) is listed for both properties, while Nyan Cat's copyright number (VAu001063390) is not mentioned. I don't know if this will affect the lawsuit at all, but it's amusing nonetheless. I rate it a hearty sloppy out of 10.

P.S. Thanks

Let's just ignore that most of the success of the Nyancat meme came from a song -that wasn't his to begin with-.

Way to be a douche and be hypocritical. (And probably very greedy, too)

This is why we.. can't really ever have nice things.

Even an easter egg, a harmless little flash in the background is enough to send some people off. I would completely understand if Warner Bros was selling the memes or something in regards to that, but the case is that because they're 1% part of Scribblenauts, that's enough to cause a law suit. This is sort of why we'll never get cool references or see neat things throughout games, movies, or ect. because the developers/owners like being overly protective.

Thank god Wreck-It-Ralph wasn't the case. I know that Disney owned the majority of licenses thus they could show the video game characters.. but it still worked out. Wish there were people who just talked on the side and got things settled then making a huge deal in public about it, demanding money as their punishment.

Pedro The Hutt:

Way to be a douche and be hypocritical. (And probably very greedy, too)

He's greedy? What about Times Warner? Nyan Cat is original enough for the creator to have a claim over it. Besides the fact that the complaint isn't about the song. If the man owns copyright over the thing then Warner Bros. aren't allowed to use it without permission. No matter how trivial YOU think it is.

Edit: Regarding Wreck-it-Ralph: Are people really naive enough that they think Disney put references to IP's without working out the copyright with the owners first?

Moonlight Butterfly:
So they don't mind it being reused over the internet a million million times but they balk at an easter egg in a well meaning game?

Talk about greedy ugh.

I think the problem is the for profit idea. if you use a meme for fun on the Internet thats one thing, to use a concept made by another in a for profit project i would say it's a completely different case. if i make an indie game and put a WB character in it Warner Bros will sue me even if the game i made is free.

also, apparently the person that made the animation (A) and the persons (there where more party's involved in the end product of the song) who made the song (B) are different people than the person (yes a third party) who combined the two to make the meme we all know and love (hate). so the distupte is probably not about what became the meme but about the character itself. but let's just wait what the judge says before making the ultimate conclusion of douchbaggery.

Hail Cthulu!

edit: i don't know how to spell dispute...

Just take the two idiotic memes out of the game, problem solved. Not like a single person worldwide would avoid a game because of that worthless loss like that.

YOU OWN A MEME.

YES YOU. YOU TWO IN THE ARTICLE. YOU OWN A MEME.

Anything you try to say involving your intellectual property being misused in the way that Scribblenauts has is forfeit in my opinion. It's not that I want content creators to be screwed out of money or anything, it's that possibly dozens of times, your work has been appropriated on the internet in games or videos, some of that being for profit, and you have come into contact with this content, made without your permission, and you have been fine with it.

Zombie_Moogle:
I was rolling my eyes through this entire article... until I read the part about them using it in the marketing & promotion; that changes the situation a bit

It's one thing to use a popular image in your work, it's another to use it as a selling point

Edit: Plus, Warner Bros dive head first into anyone that even thought about infringing their trademarks, so no sympathy there

I was also wondering why they didn't seem to care about their memes being used in the first two games. Still, I doubt if they'll be able to prove that the game would have made a significantly lower amount of sales if the memes had never been used in advertising.
But maybe that's the point. Maybe they were fine with their memes being used as sneaky Easter eggs that you'd have to have specific knowledge to find, or just find by accident. Personally, I'd be pleased to see one of my (theoretical) creations used as an Easter egg in Scribblenauts... but I'd still be mad if they used it in advertisements without consulting me first. Hell, I wouldn't need a 'golden handshake' to say yes, but I'd still appreciate the fact that they didn't assume that just because it was a meme, they could use it to promote the game.
However, I still don't think this is serious enough to warrant anything significant, but of course the lawyers will blow it out of proportion and demand thousands.

Caramel Frappe:
This is why we.. can't really ever have nice things.

Even an easter egg, a harmless little flash in the background is enough to send some people off. I would completely understand if Warner Bros was selling the memes or something in regards to that, but the case is that because they're 1% part of Scribblenauts, that's enough to cause a law suit. This is sort of why we'll never get cool references or see neat things throughout games, movies, or ect. because the developers/owners like being overly protective.

Thank god Wreck-It-Ralph wasn't the case. I know that Disney owned the majority of licenses thus they could show the video game characters.. but it still worked out. Wish there were people who just talked on the side and got things settled then making a huge deal in public about it, demanding money as their punishment.

I agree mostly for the first part, but as I said Zoobie_Moogle, it would be probably have been smarter for WB to contact the meme's owners before using their 'property' for advertising. You can argue whether they are or aren't allowed to use it either way, but it sure as hell would have avoided this kerfuffle if they asked nicely first.

By the way, Disney owns very few (if any) of the IPs in Wreck it Ralph other than the ones specifically made for the film. They contacted the owners of each appropriate IP and got permission for their few seconds of screen time. Sort of how they asked Hasbro if they could use Mr Potato Head for Toy Story.

A link to the guy who made nyan cat's tumblr post about this, if you're interested.
Personally I think that if they used the meme to advertise a product for sale, then it's not right, although I have no issue with it being in the game as an easter egg. Somebody mentioned Halo armour in Duke Nukem, but was that armour used to advertise the game, or was it a simple easter egg?

jpoon:
Just take the two idiotic memes out of the game, problem solved. Not like a single person worldwide would avoid a game because of that worthless loss like that.

Scribblenauts Unlimited has an object editor, so if they're patched out they'll be back in by lunchtime

Why am I not surprised that the Escapists is on the side of WB.

"We reached out to the companies in hopes of working out an amicable resolution of the issue, yet were disrespected and snubbed each time as nothing more than nuisances for asking for fair compensation for our intellectual property. That's not right. I have no issues with Nyan Cat being enjoyed by millions of fans as a meme , and I have never tried to prevent people from making creative uses of it that contribute artistically and are not for profit. But this is a commercial use, and these companies themselves are protectors of their own intellectual property. Many other companies have licensed Nyan Cat properly to use commercially.

"In Scribblenauts Unlimited, you have to actually type out the words 'Nyan Cat' and 'Keyboard Cat' to get our characters to appear in the game. In fact, the game forbids you from making any copyright references in their games with a pop-up error. Meanwhile, 5th Cell recently negotiated proper rights for several Nintendo characters for their games. Just because popularity with millions of fans has caused Nyan Cat and Keyboard Cat to become famous by virtue of their viral or meme nature, doesn't give these companies a right to take our work for free in order to make profits for themselves, especially considering too that they would be the first to file lawsuits against people who misappropriate their copyrights and trademarks. It just isnt fair.

"I've been working alongside with the creator of the music and the lady who uploaded it to YouTube since the start. There are many reputable companies that have respected our rights and negotiated fees to use our characters commercially. Warner Bros. and 5th Cell should have done the same.

"Since Warner Bros. and 5th Cell chose to act as if we had no rights in characters we created, filing a lawsuit was the only way we had to protect our intellectual property rights from being used for others' commercial profit without our consent. Too often normal artists like us don't have the means and resources to protect our rights against big media corporations who use our work for their own profit without permission. We are looking here just to be treated fairly and to be fairly compensated for our creative work."

WB infringed upon their copyright law, therefore they should pay. There is no discussion.
What do you guys think would happen if someone used Bugs Bunny in a game without paying WB for it? They would be sued into oblivion.

Also, just because it's a meme doesn't mean it belongs to "the people" as some people say. There is a meme with Bugs Bunny, does that mean I can use him now in my games?
There is HUGE difference between a meme and using it for profit.

Nyan and keyboard cat were trademarked after the game came out huh. Does anyone have a trademark on the wheel? Image the back royalties you'd get from that.

So, I'm supposed to side with the media conglomerate who seems to have made it their goal to take things I love and stab them in the fucking heart (yeah, how's that Devo property you refuse to sell? Do you think about it when you sic your lawyers on some obscure live performance being shown on Youtube?)?

A meme is an intellectual property. It was created by someone. If you're going to use it in something that is seeking profit, you better make damn sure you pay all your royalties.

It's the Mcdonalds hot coffee lawsuit all over again.

So, from what I can gather here, these "characters" (and I use that term loosely) were used in Scribblenauts and then a year later, they had trademarks filed for them? I'm no expert in these matters, but it sounds to me like these individuals may have thought their trademarks would be retroactive and as such they could claim the big bucks for this infringement.

Also, I'm guessing that no, you couldn't use Bugs Bunny in your game just because he appeared in a meme because well, he's Bugs Bunny. How many other pre-existing fictional characters have appeared in memes: Adam Jensen, Neo, that girl from Bleach with the leek, Kirk, Picard.... Would you use any of those in your game just because they appeared in a meme. Unlikely. You can hardly look at Nyan Cat and Keyboard Cat in the same way, as they were likely never existed before their memes.

Be sure to update us when these claims crash and burn in a predictable but nonetheless entertaining manner, will you?

 

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