You'd Be Sued If You Used Scribblenauts' Copyrights, Says Meme Creator

People howled when word spread that the creators of Nyan Cat and Keyboard Cat were suing Scribblenauts over the unauthorised use of those memes in the series' latest game. Frivolous lawsuit! Well, think of it this way: Big Video Game is finally getting sued by the little guy -- for copyright infringement.

That is how Christopher Orlando Torres, the holder of the copyright to Nyan Cat (yes, it is copyrighted and yes, memes may be copyrighted) argues it in his statement on the lawsuit, which came to light on Thursday. He says he and the creator of Keyboard Cat are suing 5th Cell, the makers of Scribblenauts, because the studio and publisher Warner Bros. acted "as if we had no rights in characters we created".

"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," Torres writes on his personal Tumblr. "But this is a commercial use, and these companies themselves are protectors of their own intellectual property."

He does have a point there.

"Just because popularity with millions of fans has caused Nyan Cat and Keyboard Cat to become famous by virtue of their viral or meme nature, doesn't give these companies a right to take our work for free in order to make profits for themselves," he continued, "especially considering too that they would be the first to file lawsuits against people who misappropriate their copyrights and trademarks."

Also pinned on point.

Nyan Cat was a valid copyright as of 2011. (Torres also holds copyrights to Pirate Nyan Cat, Mummy Nyan Cat, Pumpkin Nyan Cat, Zombie Nyan Cat, Christmas Nyan Cat, Cool Jazz Nyan Cat, Rasta Nyan Cat and Disco Nyan Cat.) He notes the irony of Scribblenauts advising players that they the game will not summon "copyrighted materials" by writing them on the notepad. His claim is over the use of Nyan Cat in Scribblenauts Unlimited, which released for 3DS, Wii U and PC in November last year. Charles Lamarr Schmidt has held the copyright to Keyboard Cat since 2010.

"There are many reputable companies that have respected our rights and negotiated fees to use our characters commercially," Torres said. "Warner Bros. and 5th Cell should have done the same."

One follower of Torres noted that when "some random troublemaker" got the original Nyan Cat video taken down from YouTube on a bogus DMCA complaint, Torres "fought with everything he had to get them to put it back up, because he wasn't the one who took it down ... all while dealing with death threats and such" from those who assumed he was. "So yeah, they would have to screw him pretty hard to have pushed him far enough to make him sue anyone."

A Legal Dispute I've Been Going Through [prguitarman.tumblr.com]


Comments

    Is it irony that the nyan cat song was taken off a Hatsune Miku song "Nyan nyan nyan" by DaniwellP and wasn't even credit for ages until some Miku fans brought it up?

    Just saying....

      I don't think it is. Nyan Cat (née Pop Tart Cat) was a creation of Christopher Torres and existed before the whole YouTube phenomenon. DaniwellP created the Nyan song using the Miku Vocaloid and Momomomo remixed it which was then (according to Wikipedia, the most trustworthy of sources) combined with the Pop Tart Cat animation by saraj00n. Popularity resulted in the "Nyan" of the song being associated with the graphic, hence the common name "Nyan Cat".

      In summary, the graphic and song are two separate things, and any copyright infringement of the song has nothing to do with the copyright on the Nyan Cat graphic.

    I know it's completely besides the point, and not an excuse at all, but I don't think anyone is going to buy Scribblenauts exclusively because you can draw nyancat in it.

      If we say for argument's sake that you could create Mickey Mouse in Scribblenauts (you may be able to, I personally have no idea) and we assume that Disney did not grant permission for him to be used in the game; no one will buy Scribblenauts exclusively because of that fact, but you can bet that Disney would come down on them like a tonne of bricks for doing it. This is no different.

      Exactly. Yes, they have a point, but it's not like it's "Nyan Cat and Keyboard Cat: The Game ft. other crap" It's just something that just so happens to have those in the game. a frivolous lawsuit seems excessive. And also makes the creators look like "hey this is ours give us money for it because no one cares about our shitty memes anymore". Wasn't it possible to summon keyboard cat in the very first scribblenauts also? or was that longcat? Why wait until this long to bring it up?

        So you'd be perfectly fine if someone used your own copyrighted creation in something they sell to others without your permission (as well as NOT paying you at all)?

          This is Scribblenauts. It's like a dictionary. I don't think Google would sue Macquarie for including their trademarked name. And I'm fairly sure that the Scribblenauts guys just thought it would be fun to include some modern pop culture references, they weren't thinking: 'this is going to move copies'. People treat IP stuff too much like a big deal these days.

            Google is a trademark not a copyright, it is quite different.

            I agree that scribblenauts isn't profiting because of nyan cat, however the broader point is that the internet has enabled artists to rip pieces off of one another without accreditation much more easily that it used to be, and there are now numerous instances of artists at big companies stealing art elements or outright copying 'fan' art. For example Disney got it trouble doing it on merchandise last month, also one of the game developers ripped elements from some guys fan art for promo material for a star wars game last year.

        they're still using copyrighted material for commercial purposes, without getting permission.
        thats against any copyright law. doesnt matter how big or small, and plenty of people have sued for much less.
        and no, theyre protecting their creations, just like any company does (apple)
        why the wait? its only 6 months, maybe they weren't aware of it, maybe it took time to get proper legal advice (not everyone has a lawyer on standby) and probably didnt think it was worth it until they teamed up.

      doesn't matter, they're using someone elses work without their permission, whether its a large part of the product or not is irrelevant.

      if I create something and someone else wants to use it then I at least expect to be consulted about it, is it really that hard for a company to pick up the phone and call a guy before they use his work? how would you feel if somebody took your work and incorporated it into their product without at least acknowledging you as the maker at some point in the production line.

      hell I'd sue them, not because they were profiting from my work (and no matter what you say the game brings profit and their work is part of it) but because they're dicks who don't understand basic courtesy.

        oh yes, I'm certainly not defending it. it's just that one point seems irrelevant, you know?

          It think it's more to do with WB being ready to sue and take down their work from online at the drop of a hat. Copyright law works both ways and the creators appear to be trying to prove that rather than capitalising on the opportunity to get money

    Nyan Cat was a valid copyright as of 2011. Scribblenaughts was first released in 2009. Scribblenaughts has been using it since before it was copyrighted, a simple "this is now copyrighted material, please remove" is all that's needed. A lawsuit against them I can't agree with. Subsequent releases post 2009 I can understand.

      I assume it should read validated copyright. Copyright exists as soon as said subject is published or commited to paper/computer.

        As far as I can see, the copyrights cover the original videos described by the terms. They don't cover the terms "nyan cat" and "keyboard cat" by themselves. Short phrases of that nature are not normally copyrightable - that's properly the province of trademark law.

        "Nyan cat" and "keyboard cat", as expressions of words, are probably too short to be copyrightable; and their use may be too general for them to be trademarkable. Scribblenauts didn't rip off the original videos, just referenced them. They're also both fairly general terms - anybody who has a cat and a computer knows about their predilection for keyboards, and "nyan cat" is like saying "meow cat" (as" nyan" is the Japanese traditional equivalent to "meow".)

        I suspect this case would be a tough sell to a judge. It may be tossed before it ever reaches trial.

        Noting that IANAL, a real lawyer may know better. Obviously they found at least one lawyer who thinks they have a case.

        I'm not sure that I would *want* the meme "owners" to win this one anyway. If the Scribblenauts developers had been asked to pay a dollar to put these into the game, I suspect they would have just left them out instead. In other words, the commercial value for adding these references is close to zero. How many people bought Scribblenauts specifically to express these memes? Can I have their names for some friends in NIgeria?

      From the article "His claim is over the use of Nyan Cat in Scribblenauts Unlimited, which released for 3DS, Wii U and PC in November last year."

      Subsequent releases post 2009 I can understand.

      Scribblenauts Unlimited was released in 2012, and they are filing a lawsuit over SNU.

      Last edited 07/05/13 12:16 pm

    Seems fairly cut and dried to me. Can't imagine it'll stay unresolved for long.

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