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

Hanmik

Member
Lock if old...

Los Angeles, CA – A copyright and trademark infringement lawsuit was filed against Warner Bros. and 5th Cell Media, the creators of the Scribblenauts videogame, by attorneys for Charles Schmidt – creator of the Keyboard Cat meme – and Christopher Orlando Torres – creator of Nyan Cat meme.

Keyboard Cat is a video of Schmidt’s cat, Fatso, wearing a shirt and playing an electronic keyboard with its pause. The meme, which is a communication of ideas or information, has gone viral, receiving over thirty million YouTube hits. Schmidt has registered the video’s copyright with the US Copyright and has two pending trademark application for the term “Keyboard Cat”, click to see the first trademark application and the second trademark application. Keyboard Cat’s stardom has led to numerous appearances in commercials, including a feature role in a national Starburst candy television commercial.

Nyan Cat is a cartoon character with a cat’s face with a Pop Tarts body, basically a pink frosting sprinkled horizontal breakfast bar with glitter and a rainbow flowing therefrom. The GIF animation has also gone viral and it was the fifth most-watched video on YouTube in 2011, winning the 2012 Webbys’ “Meme of the Year” award. Torres also registered the copyright in the animated GIF with the US Copyright Office. Torres has also filed a trademark application to register the “Nyan Cat” word mark with the US Patent & Trademark Office.

Plaintiffs accuse Warner Bros and 5th Cell of including, without any licenses or authorizations, the Keyboard Cat and Nyan Cat characters in their original Scribblenauts videogame released in 2009, the 2010 Super Scribblenauts, 2011 Scribblenauts Remix, and the 2012 Scribblenauts Unlimited. Defendants are accused of shamelessly using identifying “Nyan Cat” and “Keyboard Cat” by name to promote and market their games. Plaintiffs claim that Warner Bros and 5th Cell’s trademark infringement was willful and intentional and are requesting an award of treble damages and requesting the case be deemed exception under 15 U.S.C. § 1117(a), thereby entitling Plaintiffs to an award of reasonable attorneys’ fees.

But it looks like this isn´t such a good case..

Plaintiffs, however, mistakenly demand statutory damages and an enhancement of damages under 17 U.S.C. § 504, and mistakenly believe that they are entitled to attorneys’ fees and costs of suit under 17 U.S.C. § 505. Defendants are accused of infringing both copyrights in their initial 2009 release of the video games and neither copyright was registered until 2010. Thus, neither Plaintiff is entitled to statutory damages or attorney’s fees, a prerequisite of which – per 17 U.S.C. § 412 – is either registration before commencement of any infringement or within three months after the first publication of the copyrighted work. Further, both the Keyboard Cat video and the Nyan Cat video were published over five years before the application to register the copyrights were filed, thus they are not entitled to a presumption of validity afforded by 17 U.S.C. § 410(c).


http://www.iptrademarkattorney.com/...-keyboard-cat-nyan-cat-meme-viral-videos.html



So you can´t even put Meme´s and such in your games.. wonder if people will sue "Guacamelee" for all the memes .. lol
 

Takao

Banned
The lawyer couldn't even turn off Youtube annotations, lol.

PSN has a bunch of meme themes, and it's weird. I imagine they got consent for the ones based on people, but what do you do for the rage comics?
Not make them obvs.
 

gngf123

Member
I would've thought memes would be under public domain or fair usage.

After all, there are literally hundreds of thousands of duplicates from different people that they made without needing to go after a license or anything.
 

Brofield

Member
I would've thought memes would be under public domain or fair usage.

After all, there are literally hundreds of thousands of duplicates from different people that they made without needing to go after a license or anything.

If they can patent the human genome sequence...

But wait a sec, I'm pretty sure Pop Tarts is also copyrighted...I'd like to see them start a lawsuit with that particular plaintiff over infringing trademarks.
 
Although part of me wishes that this would spell an end to the concept of devs equating "LE MEMES LOL" with good, quirky writing, this lawsuit is just a misguided cash grab, as evidenced by the claimants tossing all sorts of irrelevant shit in the suit
 

BatDan

Bane? Get them on board, I'll call it in.
If they can patent the human genome sequence...

But wait a sec, I'm pretty sure Pop Tarts is also copyrighted...I'd like to see them start a lawsuit with that particular plaintiff over infringing trademarks.

They can easily get around it by just calling it a toaster pastry, which is what it is.

Jeez, this is like Victor Surge suing someone for using Slender Man in a game.
 

ZealousD

Makes world leading predictions like "The sun will rise tomorrow"
I would've thought memes would be under public domain or fair usage.

Keyboard Cat and Nyan Cat are a little different from most memes, since the creators are known and have been using them for commercial purposes.

All of the other stuff surrounding them are more like fan derivatives.

If they can patent the human genome sequence...

But wait a sec, I'm pretty sure Pop Tarts is also copyrighted...I'd like to see them start a lawsuit with that particular plaintiff over infringing trademarks.

Way to confuse patents, copyrights, and trademarks.

Pop-Tarts would be trademarked but not copyrighted. You can buy generic toaster patries, so Nyan Cat isn't under any threat.

And the comparison to the patent case for the genome sequence is dumb, since that's a completely different question.
 
Yeah.... they likely don't have much of a chance of winning this. You have to show that you've been actively using and defending your copyrights... something hard to prove when you didn't even bother trademarking it for years afterwards and have let, literally, hundreds of thousands of infringers get away with it even after trademarks were filed.
 

ScOULaris

Member
Not a chance in hell of winning this case. First of all, aren't the viral videos being referenced property of YouTube once uploaded there anyway? It's not like the guy who owns the cat from Keyboard Cat has some kind of copyright on the meme.
 

Takao

Banned
Not a chance in hell of winning this case. First of all, aren't the viral videos being referenced property of YouTube once uploaded there anyway? It's not like the guy who owns the cat from Keyboard Cat has some kind of copyright on the meme.

You didn't read the OP did you?

"Keyboard Cat is a video of Schmidt’s cat, Fatso, wearing a shirt and playing an electronic keyboard with its pause. The meme, which is a communication of ideas or information, has gone viral, receiving over thirty million YouTube hits. Schmidt has registered the video’s copyright with the US Copyright and has two pending trademark application for the term “Keyboard Cat”, click to see the first trademark application and the second trademark application. Keyboard Cat’s stardom has led to numerous appearances in commercials, including a feature role in a national Starburst candy television commercial."
 

ZealousD

Makes world leading predictions like "The sun will rise tomorrow"
Yeah.... they likely don't have much of a chance of winning this. You have to show that you've been actively using and defending your copyrights... something hard to prove when you didn't even bother trademarking it for years afterwards and have let, literally, hundreds of thousands of infringers get away with it even after trademarks were filed.

Well, I'm pretty sure that with copyrights that you still hold a copyright on something even if it isn't filed. The trademarks might be a different story.
 

ZealousD

Makes world leading predictions like "The sun will rise tomorrow"
Not a chance in hell of winning this case. First of all, aren't the viral videos being referenced property of YouTube once uploaded there anyway? It's not like the guy who owns the cat from Keyboard Cat has some kind of copyright on the meme.

No, you still own the copyright to your original work after you upload your video to YouTube. If Activison uploads a video about Call of Duty onto their YouTube page it does not mean that YouTube now owns the copyright to Call of Duty. He does own the copyright to Keyboard Cat.
 

ZealousD

Makes world leading predictions like "The sun will rise tomorrow"
I'd say referencing a meme is textbook fair use. Because that's the sole purpose of memes. To be referred.

When does one cross the line between a copyrighted work and a meme?

This is anything but textbook fair use.
 
I just find it funny that big companies treat the Internet like all it's out to do is steal all their stuff, but they're perfectly happy pillaging the Internet for all of *its* content.

Warner Bros. itself has a history of filing false takedown notices and the MPAA was all on board with SOPA. So fuck WB in this instance.
 
When does one cross the line between a copyrighted work and a meme?

This is anything but textbook fair use.

IANAL, but the copyright is on the videos, and covers only those specific expressions. Trademark might hit closer to the mark, but it's not like 5th Cell or Warner Bros is trying to sell any products under either of those labels. They're referencing a meme, like millions of others.
 

Jintor

Member
IANAL, but the copyright is on the videos, and covers only those specific expressions. Trademark might hit closer to the mark, but it's not like 5th Cell or Warner Bros is trying to sell any products under either of those labels. They're referencing a meme, like millions of others.

I think this is correct. He doesn't own the concept of a keyboard cat, he only owns that specific expression of a keyboard cat, yes?
 

ScOULaris

Member
You didn't read the OP did you?

"Keyboard Cat is a video of Schmidt’s cat, Fatso, wearing a shirt and playing an electronic keyboard with its pause. The meme, which is a communication of ideas or information, has gone viral, receiving over thirty million YouTube hits. Schmidt has registered the video’s copyright with the US Copyright and has two pending trademark application for the term “Keyboard Cat”, click to see the first trademark application and the second trademark application. Keyboard Cat’s stardom has led to numerous appearances in commercials, including a feature role in a national Starburst candy television commercial."

I feel shame... I should have read more thoroughly.

Couldn't such a small reference fall under the protected category of "parody," though?
 

Hanmik

Member
I just find it funny that big companies treat the Internet like all it's out to do is steal all their stuff, but they're perfectly happy pillaging the Internet for all of *its* content.

Warner Bros. itself has a history of filing false takedown notices and the MPAA was all on board with SOPA. So fuck WB in this instance.

have you recieved a lawsuit for your Avatar here on Gaf..? I guess Gearbox studios would like a word with you.. ;o) lol
 
I don't blame 5th Cell. Of all the thousands of things they have to look out for, who would have thought hat kepboard cat would be copyrighted.

But the law is the law.
 

Aostia

El Capitan Todd
If you want it, just get an Australian copy. They're both PAL.

I was planning to do this, but today I saw a rumor about a possible PAL release for end of June. Maybe distributed by WB directly and not NoE. And, if true, could be that they were already aware about this infringments...
 

BGBW

Maturity, bitches.
Nyancat is nothing without the song which was made by someone else completely.

Technically the original uploader is granted the copyright for their work, they just have to prove they were the original. So they do have a case. Don't see why this is a big deal though, wouldn't it simply come under making a reference.
 

SnowHawk

Member
The keyboard playing cat in that image looks more like a fox and nyan cat looks more like nyan mouse unless my eyes are playing ticks on me.
 
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