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Copyright lawsuit filed against Warner Bros. & 5th Cell for Nyan-cat & Keyboard Cat

Sblargh

Banned
I found no record under "pop tart cat" which is what this guy actually created. This image could be registered under any name in any jurisdiction.

Now if you can demonstrate that WB searched for Nyancat and willingly ignored the copyright that's one thing, but I'm willing to give them the benefit of the doubt that they simply did not expect an Internet meme to be privately owned copyright. Piano Cat for instance which they apparently used in past games but was not registered until 2011.

So more like ITT: People who acknowledge that this guy was first to copyright Nyancat but what he actually did was appropriate other people's work, i.e. the name, video and song that made it popular. I personally believe WB will be found against in this case, but all signs point to them using a meme, and unintentionally infringing on a copyrighted image in the process.

I don't feel like repeating once again that it doesn't matter how it became popular. Also, this notion of intent is how little kids argue with their mum, the only thing that matters even less than the roots of its popularity is the inner feelings of WB legal team.

"But your honor, we didn't really meant to do it, it like, you know, it just happened".
 
For purposes of the legal result, I agree. How it became popular does not matter. The message sent is still bad. Don't use memes or you'll get sued.

Regardless of whether he's legally in the right, I think it's a terrible double standard. This guy has fallen ass backwards into money based off other peoples work.
 

Sblargh

Banned
For purposes of the legal result, I agree. How it became popular does not matter. The message sent is still bad. Don't use memes or you'll get sued.

Regardless of whether he's legally in the right, I think it's a terrible double standard. This guy has fallen ass backwards into money based off other peoples work.

The double standard would be letting WB get away with something they would nuke from orbit without even blinking while laughing and wringing his corporate hands. And they would be right to do so, too. Even the wringing.

Also, it's terrible judgemental to simply declare that he fell into money, he created a character that was cute and funny enough to be turned into a meme that exploded. It didn't happened by luck, people genuinely liked the character enough to put it into a video, and then liked it enough to blow it out of proportion with endless interpretations.

I wonder what you think of My Little Pony becoming so popular with a demographic that wouldn't even turn into that channel if it wasn't for internet forums. Should Hasbro give a cut to PonyGAF?
 
The message sent is still bad. Don't use memes or you'll get sued.

No, the message is: "Do your research to see if it's copyrighted. If so, contact the creator." As someone mentioned, there is a repository for what is copyrighted and what is not.

It's pretty simple.
 
No, the message is: "Do your research to see if it's copyrighted. If so, contact the creator." As someone mentioned, there is a repository for what is copyrighted and what is not.

It's pretty simple.

Copyright can be taken out anywhere in the world and can be under any name for any part of a meme. This guy owns the image, not the idea. It is coincidence that the copyright was taken out under the name of the meme in this case.

The message being sent here is definitely not "check the U.S. copyright database and you can't be sued," so I don't know why you keep pushing this line.
 

baphomet

Member
For purposes of the legal result, I agree. How it became popular does not matter. The message sent is still bad. Don't use memes or you'll get sued.

Regardless of whether he's legally in the right, I think it's a terrible double standard. This guy has fallen ass backwards into money based off other peoples work.

Don't use copyrighted work of others without permission is the moral of the story.
 
Copyright can be taken out anywhere in the world and can be under any name for any part of a meme. This guy owns the image, not the idea. It is coincidence that the copyright was taken out under the name of the meme in this case.

The message being sent here is definitely not "check the U.S. copyright database and you can't be sued," so I don't know why you keep pushing this line.

You're the one who specifically mentioned "get sued". Nowhere in my last response did I say that. Stop putting words in my mouth.
 
You're the one who specifically mentioned "get sued". Nowhere in my last response did I say that. Stop putting words in my mouth.

Whatever you say dude. I'm sure you meant companies should check the U.S. copyright database and contact copyright owners just so their legal departments don't get bored.
 

Ranger X

Member
my question:

what is the US stance on copyright laws for public interest?

Because considering that nyan cat was very relevant to a wide audience and benefited from free work with alterations done by individuals to widespread the fame, would it be enough to determine nyan cat as something of public interest?

All those videos on the net when it got viral are probably under "fair use", fan stuff. This is normally tolerated.
 

snarge

Member
RfESii2.jpg
 

SeanNoonan

Member
lol at pause and not paws.

I had to re-read that a couple of times to understand.

This brings to mind when Bethesda was suing over the Scrolls name.

I still think Sega should have stepped up to sue Bethesda over using "Rage", seeing as Sega had Streets of Rage in development at the time.
 
Because nyan-cat and keyboard cat aren't worth shit, and it's a desperate cash grab.
It really doesn't matter if they aren't "worth" anything to you, what matters is that a giant megacorp is using them in a commercial product without permission. Clearly, it's "worth" something to WB.


it's like Charles Schmidt is aware of how much he's a classless piece of shit, as obvious as it is that he's doing this because of greed/copyright trolling.

Everything nyan cat related is a piece of shit.
Again, it really doesn't matter if you think it's a piece of shit, clearly WB doesn't think so or they wouldn't be in there.





I think pop tart should sue the hell out of nyan-cat's creator. Completely bury him in lawyers for the reddit headlines alone.
It would be perfectly reasonable for them to sue to get him to stop using their trademarked product name if they don't want him to.





Great, now the next Scribblenauts games will be more limited.
Or they could just get permission?





Not to distract from your point too much, but Liebeck suffered third and forth degree burns from that hot coffee so bad that she nearly died.
People need to watch this shit and educate themselves before they spread the "lol coffee lawsuit" meme again:

https://www.youtube.com/watch?v=bBKRjxeQnT4

https://www.youtube.com/watch?v=i2ktM-lIfeQ

We've got plenty of purposeful corporate apologists here, but in this case everyone is just being a corporate apologist through unthinking ignorance. Actual good youtube comment:

"I also laughed about how "stupid" Mrs. Liebeck was for her "frivolous" lawsuit... laughed and joked about it for years, until I learned the truth about her case just a few years ago. I was so ashamed I cried, thinking of all the times I'd laughed and called her stupid and unknowingly spread the lies and assumptions about her case. I cried thinking about a woman who never hurt anyone spending the last years of her life as a public laughing stock. How I wish I could apologize to her."






It's more the fact that they're blatantly cash-grabbing on phenomena that the internet spread and the internet made popular, completely independently of the "creator's" efforts.

Really, I believe memes shouldn't belong to anyone. To claim ownership, and then go out of your way to SUE others based off of something that a global community brought to light and shared / replicated / modified thousands of times, that's why they're assholes.

Now if they were to create a legitimate product, like a song or a movie, or pour legitimate R&D money into creating and marketing a brand or an image, that's one thing.

But these creators just created some random shit one day with NO intent on commercializing it and they got lucky...the internet made it popular. But instead of respecting that, they go to the lengths to "enforce their copyright on unauthorized replications," COMPLETELY neglecting the fact that it is harmless (albeit non-commercial) reproductions like this that spread their meme and made it profitable for them in the first place.

Yes I know it's within their rights to enforce something like this, it's just legal scumbaggery at its finest when you exploit something you never intended to sell or make popular, and then sue the living daylights out of harmless uses of it.
1) Picking and choose who is actually infringing your copyright or not is pretty basic to copyright law. Permission can be freely granted to some and not others.

2) Suing people who aren't actually making money off your character (in other words basically everyone spreading the meme, harmless and non-commercially) would be the asshole thing to do, in this case. But instead he's just suing a giant megacorp who thought they could use it in a commercial product without permission - I don't really see how you can call him an asshole for that.

3) If only movies or songs can actually qualify for copyright... that's going to leave out the vast majority of creative works. Photographers, painters, and writers are totally screwed.

4) If the other arbiter of qualification for copyright is pouring "legitimate R&D money" then only rich individuals and large corporations will qualify. Basically, if you're not rich, fuck you, you don't qualify for protection under the law.

5) If "memes shouldn't belong to anyone" then basically anything that becomes really popular doesn't qualify for copyright ever... but isn't that the situation when copyright protection would matter the most?

6) How exactly does it matter that "the internet spread [it] and the internet made [it] popular?" He isn't suing anyone who helped spread it or make it popular on the internet free of charge (see #2), only a giant megacorp who is including it in a commercial product without permission.


There seems to be a lot of unstated worship of the wealthy and powerful mixed in with corporate apologism in your post and many of these other similar posts that we haven't even begun to unpack....
 
Anime store in my city sells nyan cat tshirts, they have a small copyright line under the cat.
So there is licensing.

Makes me wonder if 5th cell just sent them 20 copies as a thank you at launch, would never be this drama.
 
People need to watch this shit and educate themselves before they spread the "lol coffee lawsuit" meme again:

https://www.youtube.com/watch?v=bBKRjxeQnT4

https://www.youtube.com/watch?v=i2ktM-lIfeQ

We've got plenty of purposeful corporate apologists here, but in this case everyone is just being a corporate apologist through unthinking ignorance. Actual good youtube comment:

I just watched those. I tried to keep my mind open. There's no actual argument. It's all appeal to emotion. Okay, so she's a sweet old lady. And the burns were worse because the coffee is hotter than is made at home. So?

She still purchased a scolding hot product, tried to open it in a car with no cup holder, and then spilled it on herself. She was entirely at fault.

I don't think she was being "greedy." She probably wanted to make money back from her medical bills. But that has no relevance to who was actually at fault.
 
I found no record under "pop tart cat" which is what this guy actually created. This image could be registered under any name in any jurisdiction.

But it isn't. It's copyrighted to a dude you can look up by typing "Nyan Cat" into Google and following the first link to its Wikipedia page. The research here is trivial.

(Also, I mean, they could've figured out who the guy with the copyright was by, like... talking to him after he contacted them about it in the first place.)

The message sent is still bad. Don't use memes or you'll get sued.

I think "don't assume that a viral image on the internet is in the public domain" is a pretty good message, and I don't see much downside to discouraging game developers from leaning on other people's old jokes.

There's no actual argument. It's all appeal to emotion.

I suggest reading up more on the case. McDonald's was easily at fault here, simply by virtue of selling a product that was both more dangerous than necessary and which someone could have a fair expectation of safety with. The temperatures they switched to after the lawsuit took the time for scalding burns from 1-2 seconds up to 10-20 -- more than enough time to prevent serious, permanent injuries.
 
I just watched those. I tried to keep my mind open. There's no actual argument. It's all appeal to emotion. Okay, so she's a sweet old lady. And the burns were worse because the coffee is hotter than is made at home. So?

She still purchased a scolding hot product, tried to open it in a car with no cup holder, and then spilled it on herself. She was entirely at fault.

I don't think she was being "greedy." She probably wanted to make money back from her medical bills. But that has no relevance to who was actually at fault.
She's at fault for spilling coffee on herself. McDonalds is at fault for serving coffee hot enough to cause life-threatening third degree burns - hotter than anyone makes at home, hotter than anyone could reasonably expect. That's why she won and they don't do that anymore.

The "appeal to emotion" bit was showing the same people who were saying it was a frivilous lawsuit just minutes before the actual photos of her burns and them going "oh shit" in response. It's basic fucking human empathy.
 

ZealousD

Makes world leading predictions like "The sun will rise tomorrow"
I just watched those. I tried to keep my mind open. There's no actual argument. It's all appeal to emotion. Okay, so she's a sweet old lady. And the burns were worse because the coffee is hotter than is made at home. So?

The burns were third-degree. She had to be hospitalized. She almost died.

Why the fuck should coffee be so hot that it's potentially deadly?
 

Boss Doggie

all my loli wolf companions are so moe
Oh yeah, that too, spreading via memes is free publicity and the people spreading it aren't earning cash. WB does.
 
It really doesn't matter if they aren't "worth" anything to you, what matters is that a giant megacorp is using them in a commercial product without permission. Clearly, it's "worth" something to WB.



There seems to be a lot of unstated worship of the wealthy and powerful mixed in with corporate apologism in your post and many of these other similar posts that we haven't even begun to unpack....

Excellent post, man. There's no glory in fighting this fight, though. Only pain.
 

lenovox1

Member
except 5th cell is not a megacorp, and implying that WB should go through all the assets is such a ridiculous thing.

That's why they have the legal resources they have. They have to go through this type of stuff to include a can of Pepsi in a movie, this stuff isn't foreign to them.
 

Boss Doggie

all my loli wolf companions are so moe
except 5th cell is not a megacorp, and implying that WB should go through all the assets is such a ridiculous thing.

I'm pretty sure he's talking about WB (who would pretty much nuke use of their characters for free into orbit), and yes, they are publishers. It is their job to make sure they aren't infringing on anything.
 
except 5th cell is not a megacorp, and implying that WB should go through all the assets is such a ridiculous thing.

When are you going to get the message that IT DOESN'T MATTER? 5th Cell is developing it, and WB is publishing it. They both have a responsibility for what they are creating and presenting to the public to not infringe on federal laws. Who cares whether one is a megacorp or not? I know that the guy above said that term, but it's irrelevant. Whether you're one guy or a huge corporation, it is against the law to use someone's copyrighted material in your commercial product. I'll stress once again that you should really familiarize yourself with basic copyright law before coming into a thread about copyright and arguing about it.

The wrinkle here is, if publishing agreements are anything like film distribution agreements, then 5th Cell probably signed a contract warranting that they have no encumbrances and that they have the rights to everything in the game that they are delivering to WB. Therefore, if WB has to defend this lawsuit, they can then sue 5th Cell for the costs (depending on the wording of the publishing agreement).
 
When are you going to get the message that IT DOESN'T MATTER? 5th Cell is developing it, and WB is publishing it. They both have a responsibility for what they are creating and presenting to the public to not infringe on federal laws. Who cares whether one is a megacorp or not? I know that the guy above said that term, but it's irrelevant. Whether you're one guy or a huge corporation, it is against the law to use someone's copyrighted material in your commercial product. I'll stress once again that you should really familiarize yourself with basic copyright law before coming into a thread about copyright and arguing about it.

The wrinkle here is, if publishing agreements are anything like film distribution agreements, then 5th Cell probably signed a contract warranting that they have no encumbrances and that they have the rights to everything in the game that they are delivering to WB. Therefore, if WB has to defend this lawsuit, they can then sue 5th Cell for the costs (depending on the wording of the publishing agreement).

Except you're saying excellent post to someone inherently saying that 5th Cell is a megacorp. Oh, WB is the megacorp. But you see, the ones using it are 5th cell, not the publisher. The good side of this argument is that i'm not gonna have to read again your posts, as you are talking too much over the shoulder of other users such as myself.

That's why they have the legal resources they have. They have to go through this type of stuff to include a can of Pepsi in a movie, this stuff isn't foreign to them.

They do, they do. But apparently some consider valid shifting the blame to WB, when WB is, as far as I know, the publisher. The publisher can go root deep with first parties and games heavily financed by the publisher themselves. But as far as the word goes, publisher is the one who helps with the publishing of the work, by carrying out the printing of copies. Sure the team can go from something very precise to something broad... but does anyone know how deep the publishing implication of WB goes, considering Konami is the publisher for the JP version, for example?

PS: the point here is that a publisher can be something like a newspaper, where people are essentially employees of the publisher itself, and the publisher work belongs to the publisher... or simply a remuneration for the printing/advertising of copies, plus holding the trademark of the game in many cases to prevent a jump to another publisher. Still, if they knew of a possible copyright infringement they're as guilty as 5th Cell. In reality they probably weren't aware. They would have been more diligent if past entries memes (such as keyboard cat) did cause a complaint from the copyright holders. But it didn't.

I'm pretty sure he's talking about WB (who would pretty much nuke use of their characters for free into orbit), and yes, they are publishers. It is their job to make sure they aren't infringing on anything.

Contracts sometime stipulate that on those conditions, the blame is on the creator, not the publisher. Yes, the publisher may have to destroy the copies, but the creator will have to compensate for purposely placing copyrighted content.


As we can all read on the thread title, both have been sued (WB and 5th cell). I'd say it's because they don't want to sue one only to see the blame being shifted (better safe than sorry), but I frown upon those thinking only the "megacorp" is going to get slammed deservedly, when it may actually be more harmful for 5th Cell.
 

Boss Doggie

all my loli wolf companions are so moe
who would have thought that someone who made a video of a pixel cat with a pop tart for a body would be a fucking idiot and a loser scumbag.

Stop giving juniors a bad image that they don't read the whole thread or gather facts!

Contracts sometime stipulate that on those conditions, the blame is on the creator, not the publisher. Yes, the publisher may have to destroy the copies, but the creator will have to compensate for purposely placing copyrighted content.

As we can all read on the thread title, both have been sued (WB and 5th cell). I'd say it's because they don't want to sue one only to see the blame being shifted (better safe than sorry), but I frown upon those thinking only the "megacorp" is going to get slammed deservedly, when it may actually be more harmful for 5th Cell.

Then 5th Cell should've been careful beforehand.
 
Then 5th Cell should've been careful beforehand.

I can agree with that. Myabe they thought that as it was a reference to it they wouldn't be at trouble. Past entries of Scribblenauts (2009) already had Keyboard Cat. No action was taken.
The question remains as to how they are commercially using Nyan&KB cat to their benefit. Their role is almost non existant. If one were to make a book about memes and sell it, would they need to pay royalties to them for being informative? And lastly, if scribblenauts is a game that has almost every word that comes up on the developer collective brain so the user can have almost every item they come up with, isn't it just being an informative visual depiction?

It's hard to say it's gonna be black or white, because it depends on how each part defends the case
 

Yagharek

Member
There's really no excuses here. 5th Cell/WB are using IP that they seemingly didnt license for their game, so the creator is well within their rights to get compensation.

Game developers and publishers are increasingly quick off the mark to remind customers about the difference between software license and ownership, so its somewhat amusing to see them in return be reminded about a different kind of license for a change.
 

Boss Doggie

all my loli wolf companions are so moe
I can agree with that. Myabe they thought that as it was a reference to it they wouldn't be at trouble. Past entries of Scribblenauts (2009) already had Keyboard Cat. No action was taken.
The question remains as to how they are commercially using Nyan&KB cat to their benefit. Their role is almost non existant. If one were to make a book about memes and sell it, would they need to pay royalties to them for being informative? And lastly, if scribblenauts is a game that has almost every word that comes up on the developer collective brain so the user can have almost every item they come up with, isn't it just being an informative visual depiction?

It's hard to say it's gonna be black or white, because it depends on how each part defends the case

I'm not going for keyboard cat since the case there is a bit off, but nyan cat definitely has a case since it has been copyrighted before hand.

I think the problem is that a lot of people online think that when something is a meme, it has no "copyright bearing" unless it's already a celebrity (e.g. Nicholas Cage).
 

Sblargh

Banned
I can agree with that. Myabe they thought that as it was a reference to it they wouldn't be at trouble. Past entries of Scribblenauts (2009) already had Keyboard Cat. No action was taken.
The question remains as to how they are commercially using Nyan&KB cat to their benefit. Their role is almost non existant. If one were to make a book about memes and sell it, would they need to pay royalties to them for being informative? And lastly, if scribblenauts is a game that has almost every word that comes up on the developer brain so the user can have almost every item they come up with, isn't it just being an informative visual depiction?

It's hard to say it's gonna be black or white, because it depends on how each part defends the case

Academic work falls under fair use. I can make a book about the aesthetics of Nintendo and talk about Mario whatever I want, I can even use images, as long as certain rules are followed. This is something I lazily googled, but that seems to be a good explanation of how it works.

http://www.uta.fi/FAST/PK6/REF/fairuse.html

And if it is worth anything, I do believe it was an honest human error, I don't think they thought they were being evil and trying to get away with it. But then they were supposedly contacted by the copyright holder and refused to answer, from this point on, the law has to come in.
 
I'm not going for keyboard cat since the case there is a bit off, but nyan cat definitely has a case since it has been copyrighted before hand.

I think the problem is that a lot of people online think that when something is a meme, it has no "copyright bearing" unless it's already a celebrity (e.g. Nicholas Cage).

I don't think they thought that it was fine because a meme. I believe they truly felt they were not infringing a copyright by placing with a depiction. The question remains: why they asked neogaf and not nyan cat? My only guess is that using a logo of what may possibly be a trademark (?) is bound to mean problems (plus, NeoGaf seems to be a community that likes recognition, so including it in can generate "awesome" ratings here and possible sales). Am I saying that what they did isn't bound to mean problems? No. What i'm saying is that they probably didn't think of it that way since they were using memes for previous games (longcat, tacgnol, kbcat, ceilingcat, etc).

Academic work falls under fair use. I can make a book about the aesthetics of Nintendo and talk about Mario whatever I want, I can even use images, as long as certain rules are followed. This is something I lazily googled, but that seems to be a good explanation of how it works.

http://www.uta.fi/FAST/PK6/REF/fairuse.html

And if it is worth anything, I do believe it was an honest human error, I don't think they thought they were being evil and trying to get away with it. But then they were supposedly contacted by the copyright holder and refused to answer, from this point on, the law has to come in.

The real question would be... can a book that compiles memes be considered academic? What would the threshold be to begin considering something of academic value? I already knew that it is fair use (encyclopedia,textbooks, etc).

And of course the copyright holders wanted an answer. However I think the answer had to come with an offer. Once you have published it, you already have your feet on the mud, so they could ask for quite a high royalty. Not to mention that they seem to compare the use of nyan cat in scribblenauts to prints of t-shirts, games about nyan cat and all that stuff that actually uses the original graphic features.
 

Boss Doggie

all my loli wolf companions are so moe
I don't think they thought that it was fine because a meme. I believe they truly felt they were not infringing a copyright by placing with a depiction. The question remains: why they asked neogaf and not nyan cat? My only guess is that using a logo of what may possibly be a trademark (?) is bound to mean problems (plus, NeoGaf seems to be a community that likes recognition, so including it in can generate "awesome" ratings here and possible sales). Am I saying that what they did isn't bound to mean problems? No. What i'm saying is that they probably didn't think of it that way since they were using memes for previous games (longcat, tacgnol, kbcat, ceilingcat, etc).

Then it seems they are on the wrong for not really researching things and assuming nyan cat is similar to their case.
 
Blitzcloud, you're just wrong about everything here.

1) There is no scienter or intent requirement in copyright infringement. It's an either/or thing. Just because WB wasn't "aware" of it, doesn't make them any less liable.

2) WB is the publisher. They are making money from the publishing of the game. Here in the US, everyone down the line is liable for something like this. The post I was talking about was referring to WB as a megacorp. I don't know why you're so hung up about this, and why you refuse to see that the publisher is liable here. As I stated, however, it is very possible that part of the agreement between 5th Cell and WB warrants that the game is free of any legal encumbrances and is entirely their work, so then WB can go after 5th Cell for whatever money they have to pay defending this lawsuit.

3) If you read the fair use court cases, you'll see that there are 4 factors that courts use to ascertain whether or not the use is fair. It's not always black and white, and the academic or critical nature of the infringing use is just one of the four factors (the purpose and character of the use). It could end up being an infringing use, even if it is for academia or criticism, just like it can end up being fair use even though it is for commercial purposes.
 

antitrop

Member
Anyone who still sides with McDonald's in the coffee case is stuck in the "Frivelous lawsuit!" hyperbole of the past. That perception was so pervasive that people still believe it to this day.

And obviously has never seen the pictures.
 
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