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[Aquamarine]

Luckily for the creators here, there is no country on Earth whose laws agree with your ridiculous definition of "legitimate product."

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'm fully aware that it's a "legitimate product", that's why I said they're entitled to compensation.

The legal momentum for the creators is solid. Given they've attempted to approach but were denied discourse from Warner Bros., they deserve to enforce their copyright.

I was commenting on the absurdity of over-protective enforcement of HARMLESS cameos of copyrighted internet memes. It feels like one of those "silly" lawsuits, the kind you might witness on a satire blog like The Onion. You know, something that shouldn't be tying up our legal systems, kind of like that woman who sued McDonalds for spilling hot coffee on her lap.

I'm questioning their ability to enforce their copyright so strictly (as one can with a book or a movie) when in the context of an internet meme, that is, whether they SHOULD have the same kind of rights.

 

[Gokurakumaru]

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.

Another interesting point. The guy didn't even create the name. The Internet did, and he appropriated it when he copyrighted the image. The name is from the sound the cat makes, as it sings "Nyanyanyanyanya."

 

[Jac_Solar]

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.

Doh, I did not consider that. Thanks for pointing it out.

Still, I don't think it should be possible to copyright a cat playing the piano.

What bothers me about this copyright is that a copyright would have, more or less, prevented its chances of becoming a meme. If that initial video didn't catch on, it most likely wouldn't have been copyrighted either.

The creator should decide on whether or not to copyright his creation before it's released to the masses -- because when it's released, anyone could potentially copyright it. I think. In this case, with the thousands of similar/identical videos on Youtube, I suppose anyone could have copyrighted it if they simply tried. It's potentially another issue for copyright laws in general.

 

[baphomet]

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:

1. how much Scribblenauts profit can be attributed to the hidden item, "Nyancat"
2. 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.

Why not throw in Spider-Man and Star Wars characters as hidden items while they're at it? They couldn't prove how much either of those are worth in the Scribblenauts game, and no one would purchase the game based on them being characters that appeared when you typed their name. It's the same thing and you can be assured Disney would sue Fifth Cell into nothing.

 

[Jintor]

I was commenting on the absurdity of over-protective enforcement of HARMLESS cameos of copyrighted internet memes. It feels like one of those "silly" lawsuits, the kind you might witness on a satire blog like The Onion. You know, something that shouldn't be tying up our legal systems, kind of like that woman who sued McDonalds for spilling hot coffee on her lap.

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.

 

[baphomet]

I'm questioning their ability to enforce their copyright so strictly (as one can with a book or a movie) when in the context of an internet meme, that is, whether they SHOULD have the same kind of rights.

Yes, they absolutely should. Why wouldn't they?

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 think that was a textbook frivolous lawsuit, but I agree that she deserved compensation. Selling a product in a drive through that if handled wrongly can cause skin to blister and fall off immediately should have a warning. It's like molten metal in a cup.

 

[Gokurakumaru]

Why not throw in Spider-Man and Star Wars characters as hidden items while they're at it? They couldn't prove how much either of those are worth in the Scribblenauts game, and no one would purchase the game based on them being characters that appeared when you typed their name. It's the same thing and you can be assured Disney would sue Fifth Cell into nothing.

Not sure what your point is here.

They would be awarded commensurate damages. Having copyright over a brand with demonstrated value is a good start.

EDIT: To make this clear, people buy Spiderman and Star Wars merchandise all the time. The creators make it available commercially to satisfy that itch for fans. What are these guys doing that is comparable. What damages are they seeking?

 

[blitzcloud]

I can see their next game being like...

"nyan cat"

Did you mean rainbow pastry mouse?

 

[davepoobond]

Not sure what your point is here.

They would be awarded commensurate damages. Having copyright over a brand with demonstrated value is a good start.

so something has to have value for it to be copyrighted?

EDIT: To make this clear, people buy Spiderman and Star Wars merchandise all the time. The creators make it available commercially to satisfy that itch for fans. What are these guys doing that is comparable. What damages are they seeking?

what part of copyright law even states any of what you are saying?

 

[blitzcloud]

so something has to have value for it to be copyrighted?

No, but it helps when you're claiming copyright infringement and asking for money

 

[Aquamarine]

I can see their next game being like...

"nyan cat"

Did you mean rainbow pastry mouse?

"keyboard cat"

Did you mean piano dog?

 

[Gokurakumaru]

so something has to have value for it to be copyrighted?

what part of copyright law even states any of what you are saying?

What the heck are you talking about? I explicitly said I don't disagree with their right to sue on grounds of copyright infringement.

I'm suggesting they are probably kidding themselves about the value of Nyancat and Keyboard Cat, and asking for unreasonable damages over a what is clear unintentional infringement. WB and this company have no history of doing this. The NeoGAF logo being an example.

 

[charlequin]

. So the salient point of the court case -- the damages.

I would say the salient point is WB not being able to use their content without permission, actually.

I was commenting on the absurdity of over-protective enforcement of HARMLESS cameos of copyrighted internet memes.

If 5th Cell had just talked to them it wouldn't come to this....

kind of like that woman who sued McDonalds for spilling hot coffee on her lap.

The case in question actually involved coffee hot enough to cause disfiguring burns in seconds and is widely misrepresented as frivolous when in reality it was quite legitimate.

 

[davepoobond]

No, but it helps when you're claiming copyright infringement and asking for money

there's no point in suing someone unless you can make money from it. if you've got a trademark and someone is making money from your trademark, whether or not you are making money from it makes no difference. you are honored that copyright/trademark and no one else was, and it is yours.

i dont know what is so complicated about this. bringing in this weird argument about how much money a day you make from a trademark and whether or not you should be awarded damages based on how much money you make is irrelevant.

What the heck are you talking about? I explicitly said I don't disagree with their right to sue on grounds of copyright infringement.

I'm suggesting they are probably kidding themselves about the value of Nyancat and Keyboard Cat, and asking for unreasonable damages over a what is clear unintentional infringement. WB and this company have no history of doing this. The NeoGAF logo being an example.

the point of asking for an exuberant amount is so that if it is decided in their favor, they get what they actually want when the judge reduces the amount to half or a quarter of what they are asking.

 

[blitzcloud]

"keyboard cat"

Did you mean piano dog?

pewpewdie

"did you mean screaming streamer?"

 

[baphomet]

Not sure what your point is here.

They would be awarded commensurate damages. Having copyright over a brand with demonstrated value is a good start.

So are you saying that neither Keyboard Cat nor Nyan Cat have any demonstrated value? What about the merchandise stores for both online, or the fact that merchandise for both is/was carried nationwide in stores? In this case there is no difference in having Nyan Cat or Spider-Man in the game. Both are copyrighted works with value.

 

[Principate]

No, but it helps when you're claiming copyright infringement and asking for money

Technically thats the infringers issue, the licensing fee is something set by the owner which can as far as I can tell basically be any amount (though they probably can't sue for that amount), and if you don't like the fee you simply don't use it, which is why you don't put copyrighted things in your products.

 

[blitzcloud]

i dont know what is so complicated about this. bringing in this weird argument about how much money a day you make from a trademark and whether or not you should be awarded damages based on how much money you make is irrelevant.

Uh yeah, I'd say that if you made an income off Disney trademark and copyrighted works you're bound to a higher "asking" price in the court. Damages are very relative to the trademark/copyrighted material worth.

 

[Gokurakumaru]

I would say the salient point is WB not being able to use their content without permission, actually.

They have shown no pattern of attempting to do this. I'm sure the judge will take that into consideration when awarding damages.

there's no point in suing someone unless you can make money from it. if you've got a trademark and someone is making money from your trademark, whether or not you are making money from it makes no difference. you are honored that copyright/trademark and no one else was, and it is yours.

i dont know what is so complicated about this. bringing in this weird argument about how much money a day you make from a trademark and whether or not you should be awarded damages based on how much money you make is irrelevant.

the point of asking for an exuberant amount is so that if it is decided in their favor, they get what they ask for when the judge reduces the amount to half or a quarter of what they are asking.

Copyright law was not written with the intention of suing to make money off a work you were allowing distribution of for free. It was to protect authors (and their layabout family members after their death) ability to make money off the work themselves.

Doesn't have a lot of bearing on why these guys are suing or what they're allowed to ask for under modern copyright law, but hard to sympathise with your first paragraph at all. This is why the value of the brand is relevant. WB gets nothing out of intentionally infringing copyright here (unless you count bad press), as the brand in question has little value to begin with and did not make them any more money through its inclusion.

 

[KevinCow]

They already tried that and Fifth Cell said no.

Because they're not allowed to admit they made a mistake, on account of the aforementioned corporate bullshit.

 

[Gokurakumaru]

So are you saying that neither Keyboard Cat nor Nyan Cat have any demonstrated value? What about the merchandise stores for both online, or the fact that merchandise for both is/was carried nationwide in stores? In this case there is no difference in having Nyan Cat or Spider-Man in the game. Both are copyrighted works with value.

I have no idea what they can demonstrate in terms of sales or "standard" licensing structures (if they can produce the latter). I am saying the demonstrated value will be low compared to Spiderman, yes.

 

[charlequin]

They have shown no pattern of attempting to do this

I already talked a bunch about why this isn't actually relevant, but my specific point here was that as far as I can tell the bigger goal of this suit is to prevent further infringement, not to cash in on some imaginary giant payday resulting from the infringement that already occurred.

 

[blitzcloud]

They already tried that and Fifth Cell said no.

Well, maybe they asked for an unreasonable price, now that the game is out and there's either "satisfy our demands" or "go to trial"

PS: Isn't nyan cat only on Scribblenauts unlimited? Can't they just patch it out? (at least PC/wiiU)

 

[Jintor]

I already talked a bunch about why this isn't actually relevant, but my specific point here was that as far as I can tell the bigger goal of this suit is to prevent further infringement, not to cash in on some imaginary giant payday resulting from the infringement that already occurred.

Both immediately re: Scribblenauts and, say, potentially regarding other properties using (copyrighted) memes in their games?

 

[charlequin]

Both immediately re: Scribblenauts and, say, potentially regarding other properties using (copyrighted) memes in their games?

I would imagine so. Part of the point of lawsuits like this is to serve as a discouraging precedent.

 

[blitzcloud]

I would imagine so. Part of the point of lawsuits like this is to serve as a discouraging precedent.

And if they lose, would it mean that we can use WB stuff for commercial stuff as long as it's just a plain reference?

That would even be better!

 

[thomaser]

Forgive me for not reading through the thread, but might this be the reason for the delay of the game in Europe?

 

[Gokurakumaru]

I already talked a bunch about why this isn't actually relevant, but my specific point here was that as far as I can tell the bigger goal of this suit is to prevent further infringement, not to cash in on some imaginary giant payday resulting from the infringement that already occurred.

Sure it's relevant. WB don't infringe copyright intentionally. But while it may be good education for the game industry to have their legal teams scouring all the art and intellectual resources that go into games -- which by the way they already do -- everybody will lose here.

This is going to discourage people from using memes, discourage derivative works, and basically damage the ability for other creators to get viral properties recognized in future.

 

[Sblargh]

And if they lose, would it mean that we can use WB stuff for commercial stuff as long as it's just a plain reference?

That would even be better!

The precedent would only apply to future lawsuits concerning Nyan Cat and Keyboard Cat. It doesn't bleed into WB's IPs for some reason.

Sure it's relevant. WB don't infringe copyright intentionally. But while it may be good education for the game industry to have their legal teams scouring all the art and intellectual resources that go into games -- which by the way they already do -- everybody will lose here.

This is going to discourage people from using memes, discourage derivative works, and basically damage the ability for other creators to get viral properties recognized in future.

All of these issues are besides the point that the dude who created the stuff doesn't want it to be used in this particular game anymore.

 

[trinest]

Forgive me for not reading through the thread, but might this be the reason for the delay of the game in Europe?

Nah European one was delayed yonks ago for no reason at all it seems.

 

[Gokurakumaru]

All of these issues are besides the point that the dude who created the stuff doesn't want it to be used in this particular game anymore.

True. It's still going to be a negative result for everybody else unfortunately.

 

[syllogism]

Sure it's relevant. WB don't infringe copyright intentionally. But while it may be good education for the game industry to have their legal teams scouring all the art and intellectual resources that go into games -- which by the way they already do -- everybody will lose here.

This is going to discourage people from using memes, discourage derivative works, and basically damage the ability for other creators to get viral properties recognized in future.

Discouraging meme use in games seems like positive development, not that anything is stopping the developers from contacting the author before the fact. It's not going to discourage individuals from using memes or creating derivative works on user generated content websites. Few people will be aware of lawsuit and it doesn't even have any implications on individuals using memes for not-for-profit purposes. If you make a derivative work on youtube and the author doesn't like it, you aren't going to get sued, the video will just be taken down.

 

[Gokurakumaru]

Discouraging meme use in games seems like positive development, not that anything is stopping the developers from contacting the author before the fact. It's not going to discourage individuals from using memes or creating derivative works on user generated content websites. Few people will be aware of lawsuit and it doesn't even have any implications on individuals using memes for not-for-profit purposes.

You don't get a friendly "Nyancat is copyright of so and so, contact details are such and such" message when you browse images on Youtube. There's a lot to stop companies from using memes because identifying ownership of a viral Internet idea is near impossible. Copyright is fairly quantifiable, but copyrights and trademarks can be under an arbitrary name. Unless the meme is critical to the work in question, the likely upshot of these proceedings will be that legal departments will just say "no" to their inclusion to defray risk of infringement.

This probably won't affect your regular Joe uploading Youtube vids, no, but it's still biting the proverbial hand that feeds.

 

[K.Sabot]

I see, this is how we keep dumb memes out of games.

Godspeed patent trolls.

 

[SilverLunar]

Isn't keyboard cat in the first game?? thats like 3 years ago?

Why didn't he sue before?

 

[Kageshinzo]

This is going to discourage people from using memes, discourage derivative works, and basically damage the ability for other creators to get viral properties recognized in future.

The creators have the right to decide which is damaging their creative works, monetarily or otherwise. People using a created work for memes generally don't get sued if it's a) not for-profit, and b) not damaging to the work in question. Regardless, in most cases, an author would be okay with the whole Internet using their creation as long as they are given credit and, if such a use would involve monetary benefit to the one asking, they sure as hell have the right to ask for compensation or have the creative work pulled out of the product.

 

[thomaser]

Nah European one was delayed yonks ago for no reason at all it seems.

Well of course there was a reason. The game was already shipped to distributors and ready to be sent out to stores. Some stores even got it, but had to return it. I asked the distributor why, and they said they didn't know exactly, except that something had to be changed. This copyright-thing sounds like a plausible reason to me.

 

[Soriku]

Nyan Cat, serious business.

 

[Boss Doggie]

Seems like people still think the cat existed only with the music.

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!

Regardless of the original name, the image can still be excused for not looking like pop tart.

Besides, it's sometimes nice to see big companies getting a taste of their own medicine.

 

[Gokurakumaru]

The creators have the right to decide which is damaging their creative works, monetarily or otherwise. People using a created work for memes generally don't get sued if it's a) not for-profit, and b) not damaging to the work in question.

Sure, but why bother running the risk at all. "Your work probably won't go to waste" isn't much of a reassurance. The laughable thing about all this is that it can happen retroactively. Nyancat was not Nyancat until someone else came along and added the song, gave it a name and popularised it through Youtube. Where is their Internet credit? Does Daniwell's get a slice of Nyancat merchandise sales? This is a brand built on a foundation of copyright infringement.

 

[blitzcloud]

Seems like people still think the cat existed only with the music.



Regardless of the original name, the image can still be excused for not looking like pop tart.

Besides, it's sometimes nice to see big companies getting a taste of their own medicine.

if you said WB, i'd say yes. But don't pretend 5th cell are gonna be unscathed when it's their fault (the developer). They are an independent developer company, yet seem to need a published for each game so they're not that big... i'd say they are not a "big company" by the standards of "faceless corporatism" that seems to warrant the backslash.

 

[ZackieChan]

You don't get a friendly "Nyancat is copyright of so and so, contact details are such and such" message when you browse images on Youtube. There's a lot to stop companies from using memes because identifying ownership of a viral Internet idea is near impossible. Copyright is fairly quantifiable, but copyrights and trademarks can be under an arbitrary name. Unless the meme is critical to the work in question, the likely upshot of these proceedings will be that legal departments will just say "no" to their inclusion to defray risk of infringement.

This probably won't affect your regular Joe uploading Youtube vids, no, but it's still biting the proverbial hand that feeds.

If only there were some sort of repository, or registry, that contained all of the information on what copyrights were registered in the United States before you go and use someone else's idea in your commercial product.

Oh, what do you know? http://www.copyright.gov/records/

You say that WB doesn't just go around intentionally infringing copyrights, but it looks like they DID do that. Mistake of law is not a defense. You can't just claim that you didn't know that this would fall under copyright. They were even alerted to this fact by the copyright holders.

ITT: People who know what they are talking about, versus those who wish to reinvent copyright law how they wish and pass it off as fact. It's really not helpful, guys. This is all settled law. Look it up!

if you said WB, i'd say yes. But don't pretend 5th cell are gonna be unscathed when it's their fault (the developer). They are an independent developer company, yet seem to need a published for each game so they're not that big... i'd say they are not a "big company" by the standards of "faceless corporatism" that seems to warrant the backslash.

This is the kind of case that will settle out of court, most likely. They will come to a number that is reasonable for each side. No one is going out of business for this, but they also shouldn't get off without paying anything.

 

[Boss Doggie]

if you said WB, i'd say yes. But don't pretend 5th cell are gonna be unscathed when it's their fault (the developer). They are an independent developer company, yet seem to need a published for each game so they're not that big... i'd say they are not a "big company" by the standards of "faceless corporatism" that seems to warrant the backslash.

I'm pretty sure Warner is the one being strangled here, since they're the publishers. They should at least see if stuff like nyancat would be in it. After all they're the ones handling legal stuff.

 

[blitzcloud]

I'm pretty sure Warner is the one being strangled here, since they're the publishers. They should at least see if stuff like nyancat would be in it. After all they're the ones handling legal stuff.

are you asking the publisher to check every single word of scribblenauts? Since the previous games had longcat, tacgnol, keyboard cat (yes, keyboard cat was in the 2009 version), ceiling cat, etc. why would anyone think it would become a problem in 2013?

 

[ZackieChan]

are you asking the publisher to check every single word of scribblenauts? Since the previous games had longcat, tacgnol, keyboard cat (yes, keyboard cat was in the 2009 version), ceiling cat, etc. why would anyone think it would become a problem in 2013?

Whether they do or do not is irrelevant; they are publishing the game, and therefore they are responsible for its content. There's probably indemnity clauses in the agreements between 5th Cell and WB, so they need to defend each other, etc.

 

[Boss Doggie]

are you asking the publisher to check every single word of scribblenauts? Since the previous games had longcat, tacgnol, keyboard cat (yes, keyboard cat was in the 2009 version), ceiling cat, etc. why would anyone think it would become a problem in 2013?

They're publishers.

 

[Sblargh]

I didn't knew publishers handled the legal aspects of stuff. Nice tidbit.

 

[trinest]

Well of course there was a reason. The game was already shipped to distributors and ready to be sent out to stores. Some stores even got it, but had to return it. I asked the distributor why, and they said they didn't know exactly, except that something had to be changed. This copyright-thing sounds like a plausible reason to me.

But it ended out coming out on everything but Wii U in Europe no?

 

[Gokurakumaru]

If only there were some sort of repository, or registry, that contained all of the information on what copyrights were registered in the United States before you go and use someone else's idea in your commercial product.

Oh, what do you know? http://www.copyright.gov/records/

You say that WB doesn't just go around intentionally infringing copyrights, but it looks like they DID do that. Mistake of law is not a defense. You can't just claim that you didn't know that this would fall under copyright. They were even alerted to this fact by the copyright holders.

ITT: People who know what they are talking about, versus those who wish to reinvent copyright law how they wish and pass it off as fact. It's really not helpful, guys. This is all settled law. Look it up!

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.

 

[Takao]

Sure, but why bother running the risk at all. "Your work probably won't go to waste" isn't much of a reassurance. The laughable thing about all this is that it can happen retroactively. Nyancat was not Nyancat until someone else came along and added the song, gave it a name and popularised it through Youtube. Where is their Internet credit? Does Daniwell's get a slice of Nyancat merchandise sales? This is a brand built on a foundation of copyright infringement.

Maybe?

"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."