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Copyright lawsuit filed against Warner Bros. & 5th Cell for Nyan-cat & Keyboard Cat
- Thread starter Hanmik
- Start date
baphomet
Member
Fucking copyright trolling? Really?
Good thing it's not up to you what is and isn't protected concerning ip.
ZackieChan
Member
Everyone on the Internet seems to hate copyright, until their own stuff or something they like is stolen...
blitzcloud
Banned
smichdt is the owner of the now deceased fatso
He doesn't fucking own every cat playing a keyboard. A picture of a cat on a keyboard doesn't belong to him at all, nor should the name keyboard cat because it's too vague to be unique to his copyright material.
baphomet
Member
So is a mouse with clothes.
I just don't think a homevideo of an animal doing something stupid should be considered creative property. There's nothing creative about it, nor is it someone's property.
His character is not any cat with a keyboard, it is this guy, very specifically an orage cat with a blue shirt and a keyboard whose name is "Keyboard Cat".
This is the Scribblenauts cat:
An orage cat with a blue shirt and a keyboard that only appears on the game after you type "Keyboard Cat".
I mean, c'mon, it is the same fucking character, it's not some animal doing something, it's not some cat playing any instrument. It's an orage cat with a blue shirt playing a keyboard whose name is "Keyboard Cat".
If you're against any and all copyright, then it's another debate, but if you believe that copyright laws should exist, yet that this character shouldn't be copyrighted because of the way he got famous, then I don't know what to say.
baphomet
Member
Nothing creative about it...
Yea, a cursory glance would show you that it's creative. See a few posts up.
While it's true copywrite isn't undermined by ubiquity, it's worth mentioning that Happy Birthday to You had a pretty sketchy history.
ZackieChan
Member
Yes it is. It is the copyright holder's property. The creativity comes in choosing when and where to film, framing the video, etc. Just like if you were to snap a great photograph with your camera, that would be your copyrighted work. All this means is that you have certain rights over it, namely the exclusive right to reproduce and distribute copies of it, as well as to create derivative works. Making a video of your cat playing a keyboard is 100% within copyright law. So you get those particular rights. Someone creating an animated video game version of your copyrighted material is clearly a derivative work, made even more obvious by the fact that you type in keyboard cat to summon it.
1) It is "copyrighted" as soon as he makes the video (transfixed in a tangible medium of expression). Registering it just the way that you can gain additional rights, ability to litigate, constructive notice, etc.
2) How SHOULD he protect his work and "get some money" out of that kind of success?
blitzcloud
Banned
So, if I make a guy that "kinda" looks like Robert Downey Junior and name him Robert i'm in for trouble?
The only things copyright-able by the laws of my country are:
The song: not present in scribblenauts
The performance: not present in scribblenauts
The image rights: do cats even have image rights? Well, the cat is now deceased anyways
And of course, the combination of all things: the audivisual piece in itself.
---
I don't exactly see how they are infringing any copyright beyond fair use with keyboard cat. If 5th cell had to pay a royalty for everything where the copyright holder wants money, scribblenauts wouldn't be possible. Pewpewdie? Sue for image rights. Longcat? copyright. Everything has copyright unless specifically mentioned otherwise. Not to mention that keyboard cat appeared on old entries of scribblenauts (2009?), so the copyright holder didn't execute his rights on time when it could've been appropiate. The reason is quite obvious: The weight keyboard cat has on scribblenauts is completely irrelevant. You HAVE to know keyboard cat for it to appear, which means it's just a reference.
If you make a guy that "kinda" looks like Iron Man and name him "Iron Man", and then used him as an object in a game you are selling, then you would be in trouble (unless it's a parody or something like that).
What is copyrighted is not a cat who, in his personal life between snacks and sleep, likes to play the keyboard. It is the character, who is a cat who knows how to play the keyboard. I don't believe Robert Downey Junior is a brilliant scientist who created a suit of armor after being captured by terrorists and you shouldn't be arguing about the image rights for fatso, the real life cat.
ZackieChan
Member
So? If a game like Scribblenauts isn't possible without stealing a bunch of others' intellectual property, then it isn't possible. But it is. They just have to either get licenses for everything they use, or invent their own things.
What country are you in? Because it doesn't really matter, since both Keyboard Cat and 5th Cell are in the United States. The Scribblenauts usage is clearly a derivative work, which IS covered under U.S. copyright law, and which you failed to mention above.
Also, Robert Downey Jr.'s rights here would be covered under Right of Publicity laws, not copyright. You can't copyright yourself. However, he is a famous person, and has value in his name and likeness. Therefore, if you use it without permission for commercial use, yes, he would be able to come after you. See California Civil Code §3344.
Edit - to clarify, you can copyright photos of yourself that you've taken, but not your likeness in general.
blitzcloud
Banned
Urgh, iron man is a trademark with a lot of background. Keyboard cat doesn't even have the same weight or heritage. Imagine someone makes a video with a cat wearing a fedora and trademarks him as fedora cat. That does not make said person own the looks of a cat with a fedora, nor make everyone unable to call a cat with a fedora "fedora cat".
You mean image rights. And what I meant is that if I design a character that features some likeness (cartoon) to the actor and name him Robert, that alone does not constitute an infringement of his image rights.
About the derivative work nature of the keyboard and nyan cat in scribblenauts... well, I can't say keyboard cat is really a derivative work. Nyan cat would be (because the looks are rather unique). The problem is to know where the boundary of fair use ends in this case, which the trial (if it happens) will tell.
ZackieChan
Member
The amount of "background," as you say it, is irrelevant. And your video of "fedora cat" would be copyrighted. If someone puts another cat in a fedora, that's totally fine. But if they are basically making a drawing of your "fedora cat," calling it "fedora cat," and putting it in the same exact clothes, isn't it obvious that they are copying your "fedora cat?" And if you depend on "fedora cat" for your livelihood, wouldn't it annoy you that they didn't pay you some kind of license fee to do that?
Aquamarine
Member
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
blitzcloud
Banned
The cat is not nearly as overweight, doesn't have the same color of t-shirt, and the piano is clearly different. It is also lacking the distinctive pose and play that make keyboard cat THE keyboard cat.
If they make a drawing under those circumstances, I would try to ask for my rightful royalty. But if they had to type the name for the fedora cat to appear, i'd understand they are simply making a reference to it. And if I know that the cat is only one out of thousands of items, I know they are not using my fedora cat with a lucrative intention.
Aquamarine
Member
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.
blitzcloud
Banned
that too, they owe the public acclaim to the people, and then act like overprotective scumbag corporation #3723892.
As I previously said, if it was developed as a workshop item they wouldn't have any problem (or at least, it woulnd't make much sense considering they allowed the edition of various nyan cat versions and implemented them on the website). So what IS the problem actually, that 5th cell provided the graphics?
@pizzaroll, I don't think anyone would buy scribblenauts because nyan cat is there. So they would still have to determine how 5th cell are profiting off it like a company making a mug or placing the graphic on a t-shirt would.
As I previously said, if it was developed as a workshop item they wouldn't have any problem (or at least, it woulnd't make much sense considering they allowed the edition of various nyan cat versions and implemented them on the website). So what IS the problem actually, that 5th cell provided the graphics?
@pizzaroll, I don't think anyone would buy scribblenauts because nyan cat is there. So they would still have to determine how 5th cell are profiting off it like a company making a mug or placing the graphic on a t-shirt would.
Does that mean that all those hundreds/thousands of copy-keyboard-cats are also copyrighted?
A meme is predicated upon people sharing it, copying it, etc. Without support, it wouldn't exist. Being able to copyright something that has become a standard thing (In this case, on youtube, chatrooms, forums, movies and games, etc.) shouldn't be possible.
Copyright exists to protect the creations/ideas of artists/creators. It shouldn't be possible to copyright something that got famous because people "copied" it, used it. It sort of defies the basic idea of copyright.
Since its success was entirely based on people sharing, that also means that a copyright would have prevented that fame. People shouldn't be able to retroactively take advantage of the copyright law like that.
It's as if it was open source, became popular because it was open source, then was copyrighted.
ZackieChan
Member
But it's a commercial product. Of course there's a "lucrative intention," or "commercial use."
And I don't know about your contention that it doesn't resemble keyboard cat. Looking up at the post above, it looks pretty similar to me. And how is it simply "making a reference to it," if you type the name of the thing, and something that looks that similar appears? What kind of background do you have in copyright law?
Aquamarine
Member
Yes I know their legal stance on it, but read what I have to say.
I believe the tiny cameo in Scribblenauts is 100% harmless and does not in any way deserve a lawsuit, given the circumstances.
License changes happen. Only the old versions would be covered under the old license.
Also, "open source" licenses have their own restrictions. Go look at what the GPLv3 entails.
Too bad -- the creators do.
blitzcloud
Banned
But we apparently do not have the right to present our discomfort for what we consider to be a douche move because we seem to be abolitionists of copyright laws.
One can like copyright laws for the goodwill nature of protecting a creator yet dislike an overprotective copyright holder, right?
charlequin
Banned
Wrong wrong wrong. Copyright does not require you to defend your claim, and in fact you are permitted by law to engage in whatever utterly arbitrary licensing schemes you choose (including accepting and rejecting licensees at whim, or ignoring an infringement for years before deciding to go after it) without penalty.
Trademarks, on the other hand, may be legally lost if not defended.
Nope. Parody defense requires directed mockery or satire of the target, not just general humor that incorporates the target. Neither meme is being directly satirized here.
I don't see anything wrong with turning a blind eye to fan-made and not-for-profit derivative works while being more stern with for-profit infringement... in fact, that's exactly the standard we generally apply to big corporations (who we expect to allow fan translations and love-letter fan games, while stepping in to stop paid infringements.)
All creative work is automatically copyrighted in the US and the other signatories of the Berne Convention. If you take a photo, shoot a video, hum a song to yourself, it's copyrighted. That's what we do to ensure creators have some control over -- and, maybe more importantly, ability to make money off of -- their creations at the instant they come into being.
...everything in question in this thread, because Spain is a Berne Convention signatory and therefore the copyright in Spain for all the items under discussion here is only dependent on its status in the US, where Nyan Cat, Keyboard Cat, and Scribblenauts were all created.
Luckily for the creators here, there is no country on Earth whose laws agree with your ridiculous definition of "legitimate product."
Principate
Saint Titanfall
That doesn't make any sense you can create a meme of anything even the things you just described as non meme. The only difference is something that was famous before the meme and something that wasn't. Not all copyright objects are famous so what your saying doesn't make any sense. It's simply a method of popularity that doesn't change the fact the IP you created was copyrighted in the first place. If someone tries to make money off of your creation your well within your rights to demand compensation like any company does.
ZackieChan
Member
Who cares how it became popular? It's up to the copyright holder to decide what copies of their copyrighted material they sue over. The masses who shared the meme weren't making money off of it. So why should someone sue over that? Now, 5th Cell IS making money off of this. They put it in a game that they're selling. Why shouldn't the creator of the thing they're using get some kind of reasonable license fee for it? Why can't 5th Cell just create their own thing to put in the game? Why do they HAVE to use Keyboard Cat?
baphomet
Member
So many corporate apologists.
If anyone in here has ever created anything, how would you feel if it was stolen and used in a product without even asking you if it would be ok? Well, I personally dont like people taking my creative work and using it for free without my permission. Would i have let them use it of they asked? Yea, probably. But they didnt.
Some opinions in this thread are flat out wrong.
If anyone in here has ever created anything, how would you feel if it was stolen and used in a product without even asking you if it would be ok? Well, I personally dont like people taking my creative work and using it for free without my permission. Would i have let them use it of they asked? Yea, probably. But they didnt.
Some opinions in this thread are flat out wrong.
This isn't overprotective. They attempted to reach a solution with the creators and sellers of a commercial product prior to resorting to the lawsuit and were blown off. This is entirely how copyright law should be done, actually.
One day Iron Man had a single 10-page comic in which the gray iron armor appeared only in the end. It was already in their rights to sue other companies making iron man-like characters named "Iron Man". "Weight and heritage" is not that relevant, people recognizing the character in the game as "the same cat that I saw in the funny video I saw on youtube" is enough.
And yes, if Fedora Cat is distinctive enough and the copies really look like the same "Fedora Cat" character, then you could indeed sue the person.
There is this weird notion of meritocracy going on around him with people declaring how much money these people should or should not be getting for what is or isn't their "legitimate product".
I did not mean "open source" literally. I just meant that, in the case of this meme, it was only copyrighted once the people made it popular.
Yeah, I got a little carried away. Obviously the creator of something should be able to protect his stuff. I was just talking about the nature of this particular copyright, not the case itself. I don't think anyone should be able to copyright a basic activity like a cat playing a keyboard.
charlequin
Banned
No, it really doesn't. Copyright isn't "legal protection against copying," it's "legal permission to choose who does and doesn't copy you." That's why it's copy right -- the right to make choices about who can copy something and when.
The idea that a creator can choose to promote their work by temporarily giving it away for free, or tacitly or explicitly allowing not-for-profit copying, remixing, or other forms of reuse and reinterpretation, is inherent to copyright. Many creators make use of that ability to promote themselves and their work. It's actually very important that people have that option, instead of requiring that copyright holders zealously enforce all unauthorized infringement -- that's what makes things like fanfic, translation patches, image macros, tumblr, etc. possible.
In this case, there wouldn't be a problem if 5th Cell had just pulled the specified memes in response to contact. The problem is that they're insisting on using these people's content without permission, in a for-profit product. I don't see any particular reason to take their side here.
blitzcloud
Banned
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?
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?
Gokurakumaru
Banned
This will only stifle creativity. Memes thrive on their reuse. Without Nyancat being stuck on Youtube with a Miku Hatsune song in the background nobody would know or care about it. It's equal parts quirky design and annoying song.
When the plaintiffs are assessing damages they should be asked to explain what evidence they have Nyancat itself is popular (meaning audited hits on a GIF-only version of the cat online) and why they are not defending their copyright by asking Youtube to remove the Nyancat videos not created by themselves. You know. The ones with the song that received millions of hits and are actually what's popular.
charlequin
Banned
Exactly. I'm generally a copyright minimalist (I would prefer to dramatically reduce the length and severity of copyright law) and there are many people operating within the bounds of the law who are using their copyright in an assholish and morally inappropriate manner -- but these guys aren't on that list.
Nope, copyrighted at the moment of creation.
charlequin
Banned
Completely irrelevant to the law in the US or any other Berne signatory.
charlequin
Banned
Doesn't matter; the video is a derivative work of their own creation, which means the ultimate copyright value in it rests with them.
Purposely and consciously not required by copyright law anywhere in the world, because requiring people to consistently defend their copyrights would be wildly counterproductive and result primarily in crushing fan projects and not-for-profit reuse.
It's not how it works. Charlequin explained this on post 227.
ZackieChan
Member
http://www.copyright.gov/circs/circ01.pdf
Maybe we should be on a level playing field of knowledge before discussing this? Most of the people in this thread don't seem to even understand what copyright is...
Maybe we should be on a level playing field of knowledge before discussing this? Most of the people in this thread don't seem to even understand what copyright is...
It's stupid that something like this has to be resolved by a lawsuit.
Both sides are perfectly understandable. Fifth Cell just thought it would be cute to include some cat memes in their game and didn't really consider that these memes might be copyrighted, and the guys who created these memes think people shouldn't be using their characters in commercial products without their permission.
This seems like something that could be solved by these guys and some Fifth Cell guys just sitting down and talking. Just a reasonable discussion like human beings, no lawyers. Maybe Fifth Cell admits their mistake and offers some compensation - most likely a drop in the bucket compared to what the game made - and boom, the issue's solved in a day without pissing anyone off.
But no, we gotta get lawyers and corporate bullshit involved and stretch this out for weeks or months or years and leave everyone pissed off at each other.
Both sides are perfectly understandable. Fifth Cell just thought it would be cute to include some cat memes in their game and didn't really consider that these memes might be copyrighted, and the guys who created these memes think people shouldn't be using their characters in commercial products without their permission.
This seems like something that could be solved by these guys and some Fifth Cell guys just sitting down and talking. Just a reasonable discussion like human beings, no lawyers. Maybe Fifth Cell admits their mistake and offers some compensation - most likely a drop in the bucket compared to what the game made - and boom, the issue's solved in a day without pissing anyone off.
But no, we gotta get lawyers and corporate bullshit involved and stretch this out for weeks or months or years and leave everyone pissed off at each other.
blitzcloud
Banned
what about what in spain is mentioned as "obra colaborativa", which is the category nyan cat could fall into?
baphomet
Member
They already tried that and Fifth Cell said no.
ZackieChan
Member
None of the parties are in Spain. Why does it matter what Spain says about it?
Also, that means "collaborative work?" There was nothing collaborative about the Keyboard Cat video. The popularity may be due to other sharing/posting/modifying it, but the copyrighted work itself is not collaborative.
I'd always wondered if they gave part of the credit for Nyan Cat to the original creator of the Miku song that inspired it.
(on a side note it still slightly irritates me that the original meme has been completely overshadowed by the cat, but that's really neither here nor there for the current argument, and given the differences in exposure and/or lack of western familiarity with Vocaloid I suppose it's understandable)
edit: wait, I think I've gotten confused about how many players there are in the creation of Nyan Cat, and who's using what with whose permissions.
Word of mouth and "fanfic"-like appropriations doesn't count as collaboration torwards the creation of the character regardless of how crucial they were in the popularization of said character.
charlequin
Banned
Chris Torres single-handedly owns the image of what came to be called "Nyan Cat," which is substantively what is referred to by Scribblenauts in this case. The "Nyan Cat" video isn't legally a "collaborative work" because it was an unauthorized and infringing work, which means the author has ownership only of unique elements she contributed outside of the infringement -- but in this case, the authorship of the video is pretty much entirely in combining the unauthorized image and music together, which doesn't leave much original content.
(Inasmuch as the creator gave his blessing to that combination soon after, that just makes it an authorized derivative work over which the original creators of the component parts -- art and music -- still hold ultimate authority.)
The fact that the image of the cat and the Nyan song were popularized together wouldn't affect the copyright status of the song and image separately anywhere in the world, and certainly not in the US which is the only country relevant to this story since all three parties involved are located here.
Gokurakumaru
Banned
You're completely missing the point. I'm not saying they have no right to sue.
But if Nyancat poppping up all over the place in derivative works is makes Nyancat popular, then Nyancat appearing in Scribblenauts has enhanced the Nyancat brand. So the salient point of the court case -- the damages -- need to concentrate on:
- how much Scribblenauts profit can be attributed to the hidden item, "Nyancat"
- how much the Nyancat image itself is worth
All signs point to very little money, particularly the latter. Maybe Warner Bros told them their demands were unrealistic? Who knows. All I know is I wouldn't pay much for Nyancat-themed anything, let alone Keyboard Cat. I certainly wouldn't buy Scribblenauts based on their inclusion.
And my point about this harming creativity still stands. This is a slippery slope for people like these guys.
blitzcloud
Banned
Well, let's try to summarize.
Torres invented the pop-tart cat gif.
The gif raised awareness when it was mixed with an utau song "nyanyanya", which i'd say that holds great value on the nyan cat trademark.
It was named nyan cat by the internet(?)
Several spinoffs were created alongside, boosting popularity to something "just created". It's not like a "fan" thing for well established works.
I don't know, as normally one would like to pull their hair off when you read the resolution of some cases, and while I understand that Torres has copyright on the gif and nyan cat character, I still believe he's being a bit overprotective with it.
@charlequin, thanks for that explanation.
I still wonder how much the use of nyan cat affects Torres in this case. And I would love to see them pulling the cat off the PC version, only to see it done later on the workshop. I wonder what would Torres stance be, when it's user-created content.