Two Meme Creators Are Suing The People Who Made Scribblenauts

Oh man. The guy who created Keyboard Cat (Charles Schmidt) and the guy who created Nyan Cat (Christopher Orlando Torres) are suing Warner Bros and 5th Cell for using the two cat memes in their game Scribblenauts.

This complaint comes a little bit late: Scribblenauts came out in 2009. But hey, trademark lawyers are gonna do their trademark lawyer thing:

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 video game 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.

The lawsuit, which is worth reading in its entirety, has a few great gems, like: "Nyan Cat, a character with a cat's face and a body resembling a horizontal breakfast bar with pink frosting sprinkled with light red dots, flies across the screen, leaving a stream of exhaust in the form of a bright rainbow in its wake."

Amazing. We've reached out to Warner Bros, 5th Cell and the lawyers involved. We'll update should we hear back from any of them.


Comments

    why would they bother with a long winded description for Nyan Cat body "a body resembling a horizontal breakfast bar with pink frosting sprinkled with light red dots" when you could just say -------? Oh thats right because that would be also using someones branding without there permission. Glass Houses people!

      Pretty much this, have Warner Bros get the pop tart people to counter sue these schmucks over use of their horizontal breakfast bar then rest on the moral high cloud.

      No, it's because they need to be as thorough as possible and assume people don't know what a "nyan cat" is. Not speaking sarcastically, either.

    There's also an objected called Wacky waving inflatable arm flailing tube man!

    Ok meme creators, please demonstrate the losses you have suffered as a result of the unauthorised usage of your intellectual property.

    What's that? You weren't making any money off your creations so haven't actually suffered any damages? This is just a cashgrab? Ok then.

      I don't think it's the issue of losing any profits but rather the plaintiff's are accusing WB of passing off their trademarks, which is the act of using their trademark without their permission to promote or mislead consumers into thinking the meme creators were connected with the game.

      Whether or not the creator of something was making money or not from their creation is irrelevant. Someone took their work without asking and used it in a retail product and that's wrong.

      If you wrote a song or drew a picture and uploaded it to YouTube for all to see and then someone used it in a video game and was making money from it I'm sure you'd seek compensation also.

      except they do make money off them. Through Add-clicks and licensed merchandise.

      edit: and royalties for commercial uses

      Last edited 03/05/13 2:06 pm

        Alright, let's assume that the creators are selling licensed merchandise and earning ad revenue (which the creator of Nyancat denies in his blog post - he states the works are intended to be "not for profit"). Even if you could show that the Scribblenauts creators were somehow profiting directly off the inclusion of Keyboard Cat and Nyancat in the game, there's no way that they're going to be able to prove that the revenue streams of the creators of the memes are being affected.

        I guarantee the total damages are either nil or completely negligible.

        Furthermore, he claims they are suing to protect their intellectual property from being exploited in commercial ventures in the future. He still needs to show that damages are or could arise from this.

        Last edited 03/05/13 12:15 pm

          Not really, they're claiming Statutory damages, not actual damages. These are based on "the amount of royalties which would have been due if the infringer has requested authorisation"

          And Torres admits on his tumblr that

          "Many other companies have licensed Nyan Cat properly to use commercially" "

          which shows precedent for licensing fees.

          He also goes on to talk about how Schmidt and himself made several attempts to contact 5th Cell and Warner Bros to sort this out amicably but they were ignored.

          Last edited 03/05/13 1:59 pm

            In order to prove their claims they're going to have to show that the presence of the memes were integral to the marketing and success of the game(s). The statutory damages sought strictly with respect to money they would otherwise have made by licensing the images are going to be capped at $30,000, but they haven't stopped there, because AMERICA.

            So, they're claiming for a number of things including (with reference to the Lanham Act) infringing on trademarks and falsely advertising that the creators of the memes endorsed their inclusion in the game, something they did not do. They also claim that 5th Cell/Warner Bros. intentionally utilised these images in order to willfully mislead the public into... well, it's not made clear in the lawsuit, which could be pleaded much more effectively.
            I could doodle Fred Flintsone on my notebook but I'm not claiming to have the endorsement of Hanna-Barbera, nor is a reasonable person likely to mistake my notebook for the genuine article, assuming they recognised the image.
            Now if I specifically said to you "look, this is a genuine Fred Flintstone cartoon, you should buy it" and as a massive Flintstones fan (let's pretend) you leaped at the opportunity, I would be in a lot of trouble. Not only for defrauding you but yes, for profiting off a copyrighted image. If I sold you a notebook that happened to have Fred Flintsone drawn in it but I made no particular claims about it, I doubt we'd have the makings of a copyright lawsuit on our hands.

            Let's not even play around with fair use/satire.

            Realistically, the award is going to be whatever the jury thinks 5th Cell and Warner Bros. can afford. Which is going to be a lot. Plus costs. Plus punitive damages. Plus treble damages. This'll probably settle out of court just to save everyone time. Torres and Schmidt get their payday for some silly stuff they put on the internet years ago that became part of popular culture, and this becomes a footnote in the history books.

            At the end of the day though, I'm not a lawyer, let alone one specalising in copyright law, so maybe all of the above is bollocks.

        In that case i guess i hope pop tarts makers sue the Nyan cat creator as he has "tarnished" their brand.

    This is just hilarious. If it was me I'd be honoured to have my creation in a video game. Considering the creator didn't make any money or hasn't since off his meme.

    when did memes get trademarked?!??!?

      A meme is a term given to something that has become widely recognized and popular on the web. One doesn't create a meme, one simply creates something that could become a meme.

      So memes don't get trade marked, it's only a term given to items that are widely popular.

        So technically they're wasting their money in suing?

          The opposite would be true.

          What I meant was memes can't be trademarked because it represents a collated group of items and what an internet meme describes is any viral/popular media on the internet.

          However the original product that the meme is based on still has ownership rights.

          A more obvious example is Futurama, Futurama is not a meme but certain individuals have used the content in the show and created memes. This doesn't mean the ones who made it into a meme have ownership and that the specific image is available for commercial use. You can probably see how bad it is for EA to use the Fry image and him shouting Shut up and take my Money on their next box cover.

          So they have grounds to pursue this, it's not a lost battle.

          Other individuals are approaching this in a better way and it's not about this figure being a meme, it's about what it represents in the game which some believe is an easter egg.

          I believe it is as well and would like to see how the law treats this and whether it is handled like parodies are. Unfortunately most of these cases are closed and forgotten behind the scenes, so I expect a settlement to compensate.

          Though if it goes to court that would be awesome for my amusement.

    The US Trademark search gives some interesting results (http://tess2.uspto.gov)

    There are two (2) nyan cat trademarks.
    one filed April 20, 2011 and abandoned on Feb 17, 2012 which was registered to (APPLICANT) Hong, Huy INDIVIDUAL UNITED STATES 139 Hawthorne Ave #D Palo Alto CALIFORNIA 94301
    The following category:
    Goods and Services (ABANDONED) IC 041. US 100 101 107. G & S: Entertainment services, namely, providing a web site featuring photographic, audio, video and prose presentations featuring animated NYAN CAT character with music and effects. FIRST USE: 20110412. FIRST USE IN COMMERCE: 20110413

    The second filed on June 28, 2011, still active registered to (APPLICANT) Torres, Christopher Orlando AKA PRGuitarman INDIVIDUAL UNITED STATES 2824 Ermine Way Farmers Branch TEXAS 75234
    The following categories:
    Goods and Services IC 009. US 021 023 026 036 038. G & S: Computer application software for use with mobile phones and portable media players, namely, software for manipulating a character through a series of challenges displayed on the device's screen or monitor. FIRST USE: 20110430. FIRST USE IN COMMERCE: 20110430
    IC 025. US 022 039. G & S: T-shirts

    If I created a meme I'd be pretty damn happy if it made an appearance on a video game.

    Is this what the status of internet memes reached? Sueing people for "stealing your idea"? Do they even understand what a "meme" is? Or rather, what the internet has turned "memes" into? The entire point of internet memes is for other people to share them, usually in their own way.

    This is almost as sad as hearing that Grumpy Cat had a 3 hour line at South by South West...

    Here's a link to Torres tumbler it has more information on his side of the story. Should read it:
    http://prguitarman.tumblr.com/post/49463648971/a-legal-dispute-ive-been-going-through-with

    It isn't like anyone bought these games because their fucking memes are in them, they should be happy they got exposure because no one finds their memes funny anymore anyway!

    Very ironic, considering:
    A) memes becomes memes because no one controls them and everyone is free to change and use them as they please
    B) Nyan Cat uses a Hatsune Miku song without permission

    And with that, Nyan Cat has become uncool.

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