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[blitzcloud]

The most stupid thing about this lawsuit is that scribblenauts unlimited has a workshop. So that means that any user could've made those creations. But since 5th cell made em, SUE. My guess is that they would obviously not take down user creations (maybe keyboard cat author would, as it seems he/she wants to bank on the poor cat forever.

 

[joetachi]

I find defending them using this funny upload anything thats fair use from the WB and whatch them chace your ass into hell.

 

[blitzcloud]

I find defending them using this funny upload anything thats fair use from the WB and whatch them chace your ass into hell.

 

[RotBot]

Eurogamer article with Statement from Nyan Cat creator:

Creator of the "Nyan Cat" meme Christopher Orlando Torres explained to us that the lawsuit had been misreported in the media and that "Nyan Cat" was copyrighted in 2011 while Scribblenauts Unlimited wasn't released until 2012. He didn't know about the series' use of the meme until it appeared in the debut trailer for the its latest installment:

Torres then issued the following statement:

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.

I find it disappointing that all the reporting on this from gaming sites have taken the analysis from the law blog at face value. A modicum of original research (literally took me about 10 minutes yesterday) would have told you that it got a lot of the dates wrong.

 

[B-Dex]

He's saying if you used something of WB's even if it was fair use they would go after you to remove/take it down etc... which is true.

 

[StopMakingSense]

Nyan Cat def. has a much stronger case than Keyboard Cat, IMO.

 

[Boss Doggie]

I'm confused - is the one who made the complaint the one who did the music video of Nyan Cat or just the one who made the GIF of Nyan Cat?

 

[Takao]

I'm confused - is the one who made the complaint the one who did the music video of Nyan Cat or just the one who made the GIF of Nyan Cat?

The person who made the original gif.

 

[Cosmo Clock 21]

If I'm not mistaken being labeled as parody or satire is just a more specific case of the broader umbrella of a transformative work. 5th Cell probably has an argument for that, just need to convince the courts of the same.

 

[Boss Doggie]

The person who made the original gif.

PRGuitarman yes?

EDIT: Ahh yeah, it is them.

In any case, I doubt this is satire or parody. It's not even a blind cameo.

 

[Retro_]

Is it weird that I'm rooting for the Plaintiff if only to discourage developers from putting all these stupid memes in their games going forward?

Quick someone patent Deal With It.gif and arrow to the knee

 

[McLovin]

This is so dumb, they aren't even part of the main game. It's like suing goggle for having something pop up when you type keyboard cat :/

 

[Boss Doggie]

He's saying if you used something of WB's even if it was fair use they would go after you to remove/take it down etc... which is true.

On hindsight it is hilarious. When they do it, it's fine but when others do it, you'd be shut down, just like what Disney does.

 

[Artorias]

Hopefully they both get laughed out of court. Pretty disgusting behavior, and pretending these memes added value to the game is fucking hilarious.

 

[Stinkles]

I'd have thought that a meme was public domain by definition. Without unlimited public broadcast, rebroadcast and alteration, it can't become a meme. Its intrinsic value relates to how freely it is shared.

 

[EvB]

I thought Parody was protected under US law?

 

[Takao]

I don't exactly see how this is parody:

That's just Nyan Cat drawn in the Scribblenauts art style. The artist even correctly copied the colour design of the rainbow.

 

[Uhyve]

I thought Parody was protected under US law?

I can't think of a single way to argue that this is parody. The reason this seems weird to everyone is because this is a copyright on a meme, which in order to be successful requires people to share in a viral manner, but if copyrighted the virality becomes copyright infringement. While it's weird, it's still completely within the rights of the original creators to copyright their creations.

If WB and 5th Cell were asked to remove Keyboard Cat and Nyan Cat before the release of Scribblenauts Unlimited (and they were copyrighted at that point), then this really isn't as open and shut as people are making out.

 

[zroid]

the internet, folks

(but seriously 5th Cell should've asked permission first. I'm kind of shocked they didn't.)

 

[StevePharma]

I don't exactly see how this is parody:



That's just Nyan Cat drawn in the Scribblenauts art style. The artist even correctly copied the colour design of the rainbow.

TIL rainbow colors are copyrighted

 

[Speedwagon]

I find it a bit devastating to be sued over something so trivial which probably wouldn't have effected sales had it never been implemented. I mean, who would buy the game just for these memes?

Would it be possible for Warner Bros. to remove them by an update to put themselves in the clear?

 

[RumblingRosco]

I don't exactly see how this is parody:



That's just Nyan Cat drawn in the Scribblenauts art style. The artist even correctly copied the colour design of the rainbow.

How is that the correct color for the rainbow? The Scribblenauts version only has 5 colors, the original GIF had 6. Furthermore, that's the common order of color for a rainbow; red, orange, yellow, green, blue, indigo, violet. Even the tail is missing.

I'm not saying this isn't obvious that they were essentially copying Nyan Cat (hence needing to enter "Nyan Cat" into the game for it to appear) but visually it's not identical, only similar.

 

[lenovox1]

I find it a bit devastating to be sued over something so trivial which probably wouldn't have effected sales had it never been implemented. I mean, who would buy the game just for these memes?

Would it be possible for Warner Bros. to remove them by an update to put themselves in the clear?

After they had already sold copies of the game with the characters in them? Nope. You can't erase infringement.

Besides, I assume they can't update the DS or Wii games digitally.

How is that the correct color for the rainbow? The Scribblenauts version only has 5 colors, the original GIF had 6. Furthermore, that's the common order of color for a rainbow; red, orange, yellow, green, blue, indigo, violet.

A copyright judge is not going to be that particular.

 

[Takao]

The reason I brought up the rainbow's colours is because no attempt was made to try to change the design. They didn't invert the colour scheme, or give it a frowny face. That's not a parody, it's just Nyan Cat drawn in the Scribblenauts art style.

For what it's worth, there are Nyan Cat video games, and there is a trademark on the Nyan Cat name which predates this game's release. I wouldn't feel okay in saying Nyan Cat is a selling point for Scribblenauts but I don't necessarily think it's right for Warner to ignore the dude since if it was the other way around he'd likely have a lawsuit his great great great grand children will be paying off or have been issued a C&D ages ago.

 

[Makonero]

I don't exactly see how this is parody:



That's just Nyan Cat drawn in the Scribblenauts art style. The artist even correctly copied the colour design of the rainbow.

No he didn't. There's a blue missing. Also, the cat's head is facing the wrong way.

[/pedant]

 

[RotBot]

A lot of the posts here don't appear to have a well thought out stance on copyright laws and simply use liking game developers and hating Internet memes as a primary argument, so it's hard to build a reasoned discussion around these kinds of comments. It would help if posters consider at least some of these questions.

For the people dismissive of this lawsuit, do you believe that characters created by others should be freely used in a commercial work? Do you believe that characters popularized through Internet memes deserve no copyright protection when used in commercial works? Do you believe memification implies parody and thus fair use?

Nyan Cat and Keyboard Cat appear to be the only objects in the Scribblenauts games that are potentially under copyright contention. Outside of some licensed Nintendo characters and the cats, 5th Cell have been careful keep other characters out of the games. Suppose the below characters were added to the games with the ability to type their names (eg. "Blanka", "Locke", "Travis Touchdown") to summon them. Should 5th Cell have as much a right to use these characters as they do Nyan Cat and Keyboard Cat? If not, what determines the threshold for fair use? Do the characters have to have been used in a strong narrative work, as opposed to a brief video? Does Nyan Cat being copyrighted as Visual Material and Keyboard cat being copyrighted as a Motion Picture make a difference in how they can be used by others? Do the trademarking of Keyboard Cat and Nyan Cat make a difference, and should they have been given trademark status?

 

[ZealousD]

Yeah I just think people are having a hard time wrapping their head around the idea of Nyan Cat and Keyboard Cat being copyrighted. As if somehow the copyright means less when owned by individuals instead of a major corporation. That's the real tell here. If this game featured a meme like Spiderman doing his "How do I shot web" pose, I don't even think people would buy the parody defense.

 

[MoonsaultSlayer]

I've only learned of Nyan-cat when CN's Mad mocked Thundercats fused with internet cat memes.

http://www.youtube.com/watch?v=lY4Wz1FZmlU

 

[Proven]

A lot of the posts here don't appear to have a well thought out stance on copyright laws and simply use liking game developers and hating Internet memes as a primary argument, so it's hard to build a reasoned discussion around these kinds of comments. It would help if posters consider at least some of these questions.

For the people dismissive of this lawsuit, do you believe that characters created by others should be freely used in a commercial work? Do you believe that characters popularized through Internet memes deserve no copyright protection when used in commercial works? Do you believe memification implies parody and thus fair use?

Nyan Cat and Keyboard Cat appear to be the only objects in the Scribblenauts games that are potentially under copyright contention. Outside of some licensed Nintendo characters and the cats, 5th Cell have been careful keep other characters out of the games. Suppose the below characters were added to the games with the ability to type their names (eg. "Blanka", "Locke", "Travis Touchdown") to summon them. Should 5th Cell have as much a right to use these characters as they do Nyan Cat and Keyboard Cat? If not, what determines the threshold for fair use? Do the characters have to have been used in a strong narrative work, as opposed to a brief video? Does Nyan Cat being copyrighted as Visual Material and Keyboard cat being copyrighted as a Motion Picture make a difference in how they can be used by others? Do the trademarking of Keyboard Cat and Nyan Cat make a difference, and should they have been given trademark status?

Ah, listing it as a character rather than a meme makes much more sense.

 

[JordanLMiller]

Yeah I just think people are having a hard time wrapping their head around the idea of Nyan Cat and Keyboard Cat being copyrighted.

That's exactly it for me. I just don't think stuff like that should even be allowed to be copyrighted, but, hey, I guess it can be.

 

[Boss Doggie]

I think people only know Nyancat as a meme than as a character icon... which is kinda sad but understandable.

 

[bon]

Dear Every Game Developer,

please stop putting internet memes in your games.

Sincerely,
Me

 

[Sblargh]

That's exactly it for me. I just don't think stuff like that should even be allowed to be copyrighted, but, hey, I guess it can be.

These are characters they created (in the case of the cat, the character of a movie). Why are people finding this weird? Just because their distribution method was word of mouth from the internet and not-for-profit appropriations of the characters?

 

[Boss Doggie]

Yeah.

I mean, people wouldn't put the "You don't say?" image in a game because it features Nicholas Cage. Nyancat is similar in that case but unlike Cage people only know of the meme and not as a character.

 

[Coen]

These are characters they created (in the case of the cat, the character of a movie). Why are people finding this weird? Just because their distribution method was word of mouth from the internet and not-for-profit appropriations of the characters?

I guess I could agree on Nyan Cat being a trademarked thing, since some actual creative effort went into it. It's not that different from a cartoon actually. But as to Keyboard Cat, I just don't see the merit.

I could go to the park with my dog, let him chase a ball, film it, put it out on YouTube and trademark it. I honestly don't see what's so different about that than a keyboard-playing cat. They're both animals doing an activity.

 

[Pikawil]

Ubisoft owns the TMNT video game license

They did; not anymore by the time Blood Dragon is even released.

 

[Feep]

Hmm, I should sue 5th Cell too for use of my name in Scribblenauts

Oh wait I'm not an asshole

 

[Metal Gear?!]

That's exactly it for me. I just don't think stuff like that should even be allowed to be copyrighted, but, hey, I guess it can be.

What should be allowed to be copyrighted?

I guess I could agree on Nyan Cat being a trademarked thing, since some actual creative effort went into it. It's not that different from a cartoon actually. But as to Keyboard Cat, I just don't see the merit.

I could go to the park with my dog, let him chase a ball, film it, put it out on YouTube and trademark it. I honestly don't see what's so different about that than a keyboard-playing cat. They're both animals doing an activity.

The "animal doing an activity" part isn't copyrighted. The particular expression is. If your particular "dog playing with ball" video was so widely popular that a million TV shows wanted to run it and video games wanted to reproduce it you should damn well want a piece of that revenue pie.

Hmm, I should sue 5th Cell too for use of my name in Scribblenauts

Oh wait I'm not an asshole

Why are they assholes?

 

[SummitAve]

Why are they assholes?

Because nyan-cat and keyboard cat aren't worth shit, and it's a desperate cash grab.

 

[Feep]

Why are they assholes?

Because those characters got famous ONLY BECAUSE people took those characters and made technically illegal copies/replications/modifications. There were hundreds of thousands of infringing works all over the internet...that's what made them famous in the first place. Is it commercial if the video is on YouTube, and makes ad revenue? They're going after Scribblenauts, whose inclusion of those characters does nothing but to further their reach and presence in the marketplace, simply because Warner Bros. and 5th Cell have money. It's nonsense. Just because they might have legal grounds to stand on (and they probably don't), doesn't mean they should.

 

[SummitAve]

I think pop tart should sue the hell out of nyan-cat's creator. Completely bury him in lawyers for the reddit headlines alone.

 

[RocketDarkness]

I think pop tart should sue the hell out of nyan-cat's creator. Completely bury him in lawyers for the reddit headlines alone.

He can easily call it a toaster pastry.

Because those characters got famous ONLY BECAUSE people took those characters and made technically illegal copies/replications/modifications. There were hundreds of thousands of infringing works all over the internet...that's what made them famous in the first place. Is it commercial if the video is on YouTube, and makes ad revenue? They're going after Scribblenauts, whose inclusion of those characters does nothing but to further their reach and presence in the marketplace, simply because Warner Bros. and 5th Cell have money. It's nonsense. Just because they might have legal grounds to stand on (and they probably don't), doesn't mean they should.

You could argue the same thing with people making fan-art, Let's Plays, AMVs, etc, for all sorts of video games, couldn't you? The fact that Nyan Cat has its own store, complete with merchandise and games, gives him a pretty strong case.

 

[Boss Doggie]

Because nyan-cat and keyboard cat aren't worth shit, and it's a desperate cash grab.

keyboard probably, but nyan cat is big and a pre-existing character. What gives you the right to judge which character is worth shit after all?

I think pop tart should sue the hell out of nyan-cat's creator. Completely bury him in lawyers for the reddit headlines alone.

You do know that the thing is vague enough to look like toast with jelly right?

 

[nullset2]

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.

 

[MidgarBlowedUp]

http://i.imgur.com/FShFTAE.jpg
Nailed It.

 

[Boss Doggie]

You know what, if given a chance, people will think MLP is a "meme" too because they are only familiar with it as memes. It's a sad thing that when something becomes popular from internet spamming, they'd think it exists there and there alone.

 

[SMT]

Looks like a Nyan-Koala. I mean, that video made the poptart hybrid animal popular, of course people will replicate it as it has become part of popular culture.

 

[blitzcloud]

You do know that the thing is vague enough to look like toast with jelly right?

you do know that the original name of the cat gif is pop-tart cat, as in the name the author gave it? and pop-tarts is a a trademark of kellogg's

One can argue that the picture within itself didn't become famous, but rather the juxtaposition and the internet-given name. Not to mention all the fanwork that made the popularity rise. So I still wonder what harm did a reference to the picture Torres created do as far as copyright goes, aside from GIMME MONIES MONIES MONIEEES!

 

[baphomet]

Good for them. Their creative property was used without any licensing agreement at all. Anyone who doesn't think stuff like this should be able to be copyrighted is a corporate apologist of the highest degree.

 

[ZackieChan]

The case is paper thin(if there's even a case here). Warner can come back with saying the images/use of marks are used for satire which is protected.

Not as protected as parody. So where is the parody? Where is the satire? What exactly is 5th Cell commenting on, in order to get first amendment protection here? They just took the idea and redrew it in their own style for their game.

And no one is saying that all drawings of cats playing keyboards are off limits for the copyright term. But when you draw. Basically the same cat and call it keyboard cat, it's obvious what is going on. This isn't transformative at all, except drawn in the same style as the rest of the game. It is in no way an obvious fair use, or even a fair use at all.