Meme-sploitation in Scribblenauts getting busted

[Don Flamenco]

goddamn these guys are smart

http://www.iptrademarkattorney.com/2013/04/los-angeles-copyright-trademark-sue-attorney-keyboard-cat-nyan-cat-meme-viral-videos.html

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.

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).

[mjemirzian]

Original content do not steal.

[Flannel Boy]

Fair use: parody/satire.*

*have not read any case law because this exception/defense was just recently added to the Canadian Copyright Act under "fair dealing" (equiv of fair use). 

[Great Rumbler]

Keyboard Cat is a video of Schmidt’s cat, Fatso, wearing a shirt and playing an electronic keyboard with its pause.

 

[Brehvolution]

Somebody owns a cat playing the piano? 

[Great Rumbler]

Somebody owns a cat playing the piano? 

Technically, it's a keyboard.

[Brehvolution]

The cat isn't even playing the keyboard by its own free will.

[Flannel Boy]

Somebody owns a cat playing the piano? 

The video itself is copyrightable, but I can't see how any representation of a cat playing is an infringement.

[Don Flamenco]

Somebody owns a cat playing the piano? 

well, he did make the original video.  Dumber things are protected...like Happy Birthday.   

Fair use: parody/satire.*

*have not read any case law because this exception/defense was just recently added to the Canadian Copyright Act under "fair dealing" (equiv of fair use).

If South Butt (parody of North Face) couldn't prevail, I don't see why this could.  but I say that with every ip case

[Don Flamenco]

is the song in the game?   I haven't played these after the first Scribblenauts made diarrhea literally pour out of my DS.  that's right, literally.

[Flannel Boy]

Somebody owns a cat playing the piano? 

well, he did make the original video.  Dumber things are protected...like Happy Birthday.   

The length of protection is the dumbest thing--but I guess that applies to all works.

[Flannel Boy]

Fair use.

Kellogg should sue the maker of nyancat.

[Don Flamenco]

eh, they probably don't even need that.   It's kind of a weird set of circumstances to sue under...i don't know what happens when the game came out before the copyright, but is still being sold after the copyright.  and you have to go after people who are using it with out authorization to show you care about protecting it, yet they're memes, so they're everywhere (though I guess they could prove this by showing off DMCAs they issued after registering and such.)

[Joe Molotov]

1. Copyright Meme
2. Sue the Internet
3. ????
4. Profit

spoiler (click to show/hide)

Please don't sue me, Trey Parker.  :'(

[close]

[Don Flamenco]

we'll only see more of that in the future once people realize...well, once average americans realize they can profit off memes.  (think flea market people realizing their old games are worth money)

Keyboard Cat is a video of Schmidt’s cat, Fatso, wearing a shirt and playing an electronic keyboard with its pause.

 

that's...incredible. autocorrect?

[Momo]

If anyone ever wanted to take down Gearbox, now is the time to contact the owners of the 1000 memes they pilfered

[Trent Dole]

I wonder if Nyan Cat guy has given anything to whoever made the song he uses in the video. Cause he sure did not compose it himself.

[Great Rumbler]

I wonder if Nyan Cat guy has given anything to whoever made the song he uses in the video. Cause he sure did not compose it himself.

The long journey the song went through is quite the read, far more complex and convoluted than I would have imagined.

[DCharlieJP]

Ah - the old fair use / parody thing. I am constantly amused that a whole slew of the Internet seems to think that quoting the old fair use definition on YouTube means that you can use any music you want in your YouTube videos - then some people get bemused because their videos still get taken down for copyright violation. Theres a reason shit still gets taken down - it isn't in anyway fair use and you still fall foul of another part of copyright law.

(I worked in music copyright for 3 and a bit years - specifically I also worked on early Internet licensing)

Anyways - Nyancat - as much as people don't like it they haven't got much of a leg to stand on and as for Keyboard Cat they'll probably lose on "essence". I find myself conflicted - I'm all for people not being ripped off but the core thing of a meme is it is copied and reused everywhere in order to grow the popularity and , well, make the meme what it is. To then bring legal action because people are using your meme seems counter to the essence of a meme - especially when the appearance of the memes aren't core to the gameplay. Alas - I'm sure lawyers will talk about "how would WB like it if some one used their characters!" or other more grand comparisons to Disney or Pixar or whatever. I'm not sure whether memes should be afforded the same status - mainly because I hate them.

[Don Flamenco]

they'll say "everyone else called it a meme, but keyboard cat is a legitimate artistic creationbalh baljalkh sbalh" or something like that. 

[pilonv1]

Typical US style nuisance lawsuit

[thisismyusername]

Nyan cat is protected by Chris, though. So unless Scribblenauts licensed it from him, he has a case in regards to "they used my work without permission." He's pretty hardcore about people using his internet work for free.

[Trent Dole]

A JEREMIAH SLACZKA lawsuit.

Sorry, just wanted to make that joke. That nobody will get.

Does anyone own the rights to the rage faces? Because I see shit all the time being sold that has Rage faces on them. Internet memes are kinda weird, legally.

Yeah, someone has claimed ownership of them as Cool Face apparently. We have shirts of them at one of my jobs. Dunno how you can copyright stupid shit randoms drew on 4chan or wherever but it seems somebody has done so!

[Don Flamenco]

A JEREMIAH SLACZKA lawsuit.

Sorry, just wanted to make that joke. That nobody will get.

Does anyone own the rights to the rage faces? Because I see shit all the time being sold that has Rage faces on them. Internet memes are kinda weird, legally.

i thought i read something about one guy claiming to have made the original one, but it was posted on /b/ first, so who knows.  Then all the other ones came up in the rage comic subreddit, then all the comics turned into comics about guys getting friendzoned so i stopped paying attention, then i walked by a hot topic and they had rage face shirts for sale.  and some company put out a rage comic theme on PSN.  that's my story

[thisismyusername]

Does anyone own the rights to the rage faces? Because I see shit all the time being sold that has Rage faces on them. Internet memes are kinda weird, legally.

Yes and no. Yes, someone made it so they "own" it. But this is before meme-exploition happened to where they never came forward, claimed copyright/trademarks and the like over it and so companies can mine it for free.

[chronovore]

It's all a terrific load of horseshit, because the rage face and any other meme where it's combined by other people and spread is not really the created object of the originator, as much as it has become popular due to the uncoordinated but collaborative efforts of other internet users.

If the creator of "rage face" had come forward to stop other people from using his drawing without credit, it wouldn't have become popular. If it hadn't become popular, there would be no T-shirts.

There's a reasonable argument to be made that Hot Topic is making money, while the other collaborators were not making money; I suppose it's pretty difficult to assign a Creative Commons license to such a thing retroactively.

[chronovore]

A JEREMIAH SLACZKA lawsuit.

Sorry, just wanted to make that joke. That nobody will get.

Does anyone own the rights to the rage faces? Because I see shit all the time being sold that has Rage faces on them. Internet memes are kinda weird, legally.

HYBRID! I get it! Because I've seen that name just before I join entirely unpopulated Lobbies.

[Cerveza mas fina]

Fair use would have been ok if this was an editorial piece maybe, but this game is clearly a commercial product.