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Cat meme creators in legal battle with Scribblenauts

Christopher Orlando Torres and Charles Schmidt file against Warner Bros. and 5th Cell Media

The creators of popular memes Keyboard Cat and Nyan Cat have filed a copyright and trademark infringement lawsuit against Warner Bros. and 5th Cell Media over their characters' appearances in the Scribblenauts games.

Christopher Orlando Torres and Charles Schmidt's complaint says the memes were used in Scribblenauts porducts without their permission, and points out that the Warner Bros. logo is itself a meme, and that "of course, WE employs an army of lawyers who use 26 trademark and copyright law to zealously protect its intellectual property."

Both Schmidt and Torres have applications pending with the United States Patent and Trademark Office for their creations.

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"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," Nyan Cat creator Torres told Eurogamer.

He also wanted to make clear that despite reports in the media, Nyan Cat was copyrighted in 2011, before its appearance in Scribblenauts Unlimited in 2012.

"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."

Torres and Schmidt are seeking an unspecified amount of damages.

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Latest comments (14)

Richard Hill-Whittall Director, Icon Games3 years ago
Pathetic. Clearly the sniff of some free money has addled their brains.

It is just a fun nod to those two 'memes'.

Is this not covered by parody laws?
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Paul Johnson Managing Director / Lead code monkey, Rubicon Development3 years ago
Oh I dunno, I'm dead against pointless litigation and came into this thread ready to cast some hellfire of my own.

But having seen the image, I'm 100% down with their claim. A cat's head on a body made of bread and jam with a tail made of rainbows is hard to arrive at coincidentally!

(I can't believe I just wrote that, lol)

Edited 1 times. Last edit by Paul Johnson on 3rd May 2013 11:34am

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Jim Webb Executive Editor/Community Director, E-mpire Ltd. Co.3 years ago
Richard, that is exactly why this won't amount to anything for the copyright holders. Parody protection.

However, I'm very surprised they even tried to trademark those memes. Meme's themselves are often a parody and the very nature of a meme almost makes them public domain.
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Show all comments (14)
gi biz ;,pgc.eu 3 years ago
What did I just watch?? _
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Gareth Donaghey Customer Support Agent, Blizzard Entertainment3 years ago
If this wins, Troll Face artist is going to be a trillionaire.
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Christopher Bowen Editor in Chief, Gaming Bus3 years ago
Pathetic? Sure, but imagine if the shoe was on the other foot. It's OK for Warner to take someone else's property, but if someone did the same thing, in a commercial work, Warner would send a fleet of lawyers to salt the earth. That's acceptable?
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Kingman Cheng Illustrator and Animator 3 years ago
Whynne from DeviantART would be very pleased. :P
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Greg Wilcox Creator, Destroy All Fanboys! 3 years ago
@Paul: That's a Pop-Tart that cat's body is made of. A slice of bread isn't space-worthy.

Also, here's the countersuit: Animal abuse for forcing that other cat to badly play the piano.

That said, I bet this gets tossed out because the judge thinks Internet memes aren't worth a dime and he makes these "creators" pay 5th's Cell's legal fees...
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Staeton Grey Junior Software Engineer, Pennant PLC3 years ago
Its actually a Pop Tart, part of the Kellogg cereal brand and product.
If the Nyan cat "creator" seeks money, then I'm sure Kelloggs would love to weigh in on this rubbish.
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Greg Wilcox Creator, Destroy All Fanboys! 3 years ago
Well, the suit will NOW go like this: after it gets onto the national/local news here, Kellog's finds out and counter-counter sues (whee!). The judge gets it right and the cat "creators" lose twice and have to pay up legal fees for both companies and end up handing over Nyan to Kellogg's as the Pop-Tart mascot for eternity (or until someone else uses their product as a meme and doesn't let them know about it)...
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gi biz ;,pgc.eu 3 years ago
@Greg: uhm does it mean that Kellogs should sue 5th Cell as well then? it's going to be a FFA :)
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Adam Jordan Community Management/Moderation 3 years ago
I really should stop reading articles like this without sleeping first...the only thing that comes to mind is "Wait...what?"

Keyboard Cat may indeed have a claim, it's "original" and as far as I know it's not a parody or copy of anything else (It's a damn cat playing the keyboard....how well it does it...well that's just opinion :P)

Nyan Cat on the other hand is sketchy...as mentioned it's a cat with a pop-tart as a body that poops rainbows...obviously the only saving grace that the Nyan Cat creator gains on their side is that if he/she hasn't gained any monetisation from the meme at all then the crazy pop-tart makers can't (in theory) touch him/her.

My train of thought with this though is that...if Nyan cat creator gets money from this battle, would Adult-Swim be able to jump into the FFA and counter-gank-sue-claim that Nyan cat's propelling system is a cheap knock off of Robot Unicorn?

Overall, however asking people's permission doesn't hurt...although I would have assumed the inclusion of the memes would be considered an "Easter Egg"...if not then boy, Runic Games need to run to the hills for including Skyrim and Borderlands material in Torchlight 2

Yeah...nap time me thinks

Edited 1 times. Last edit by Adam Jordan on 7th May 2013 8:54am

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Brook Davidson Artist / 3D design 3 years ago
I actually do not agree with a lot of you. This person in my opinion has every right to sue. What makes a meme a meme is popularity on the net. Such as My Little Pony. So, no, a meme doesn't make it a parody. Nyancat is no different, it is a character created by someone, and is no different then any character ever created.

As for the cat being part poptart does not mean the makers of poptarts can sue. There are many brands that look like pop tarts. I also do not think poptart makers copyrighted the look of their product. The creator of Nyancat can also easily just say it isn't a poptart, it's bread with jam on it. How many can deny this claim with 100% certainty?
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Greg Wilcox Creator, Destroy All Fanboys! 3 years ago
@Michele: Well, that's where it's going to go at this point. Everyone with ANY claims that a copyright has been broken here will sue everyone else and while that's clogging up the courts, all the actual criminals out there can get more done during their own "work" days and nights...
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