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The cat memes in Scribblenauts are illegal, claims cat meme duo
May 2, 2013 | By Kris Graft

The owners of a couple of the most famous cat memes in internet history are suing Warner Bros. and independent game studio 5th Cell for allegedly using those cats without permission.

Charles Schmidt and Christopher Orlando Torres hold the copyrights and trademarks to "Keyboard Cat" and "Nyan Cat," respectively.

In a complaint filed on April 22, they claim that 5th Cell's Warner-published game series Scribblenauts infringes on their cat-centric copyrights and trademarks by using the cat memes without permission in the games, and to promote the series.

The memes have been viewed tens of millions of times. "That popularity makes them extremely valuable for commercial uses. Unlike WB and 5th, many other companies, respecting plaintiffs' intellectual property rights, regularly pay substantial license fees to use plaintiffs' memes," the complaint reads. The filing also claims that "Keyboard Cat" and "Nyan Cat" are used in Scribblenauts by name.

"Keyboard Cat" is a video of Schmidt's cat "Fatso" (pictured), who's wearing a shirt and sitting upright while playing a keyboard. Torres' "Nyan Cat," is a video of a cartoon cat that has a pink-frosted Pop Tart for a body, with a rainbow trailing behind.

Schmidt and Torres add in the filing, "The 'WB' logo also is a meme, even though it is only two letters inside the outline of a shield. Of course, WE employs an army of lawyers who use trademark and copyright law to zealously protect its intellectual property, including its logo."

The plaintiffs are seeking judgment for damages (plus interest), legal fees and an injunction against the sale and marketing of allegedly-infringing Scribblenauts products.

Complaint [PDF] and image via IP Trademark Attorney.

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Having to have permission to use a meme destroys the purpose of a meme. Perhaps they are mad at the meme gaining profit for someone other than themselves, but it's not a meme if it's use it to advertise a person, product, or entity. It becomes an advertisement if it does that, and not a free to use meme.

E Zachary Knight
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Yeah, this kind of reminds me of the Fus Ro Dah meme that Zenimax locked down long after its popularity began to wain.

E Zachary Knight
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The fact that they call the Warner Brothers logo a meme shows that they do not fully understand what a meme is.

According to the IP Attorney website, due to the dates in which they filed for their respective copyrights, they are not qualified for many of the damages they are seeking. That might put a damper on their lawsuit.

Ryan Stemen
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Thanks for pointing out that referenced IP Trademark Attorney website--it seems to sum up where this case is headed pretty well.

Joseph Vasquez II
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Wait, do they own the rights to Pop Tarts as well? I mean, they used a Pop Tart to make something popular. Did they have permission for that?

Kris Graft
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The complaint actually calls it a "breakfast bar with pink frosting sprinkled with light red dots."

But we all know what it is.

Kelly Kleider
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That we do...kiddie crack. Let's admit's just pure refined sugary kiddie crack with light red dots.

Bruno Xavier
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Ownership of a MEME?!? For real? ...... ...

Michael Ball
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Trollface is also copyrighted by its creator, though he is much more lax about it.

Kenneth Blaney
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The likely result of this is that the owners of keyboard cat and nyancat will be shown to have failed to defend their copyright in the past (see the literally thousands of keyboard/nyan cat including this one:
at-header.jpg) and therefore 5th Cell may have used it under the reasonable assumption that it was free to use. This happens ALL THE TIME and is why so many student mod projects get C&Ds (if the company just let it happen, they risk losing their rights).

Evan N
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You're probably thinking of trademarks, not copyrights. Copyright holders have the right to only enforce against certain parties, or even not enforce at all since copyright isn't necessarily a tool of commerce. Trademarks can be lost by one party and taken over by another based on evidence of continued exclusive use in commerce.

That said, since they're suing on both trademark and copyright ground, you're probably right about them losing some of their standing. If the defense can show individual instances of "significant" violation (as opposed to many instances of incidental violation) of their trademarks, then they'd have a good argument for the trademark being invalid.

Jeremy Reaban
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You don't have to defend copyright. You're thinking of trademark. If that becomes a generic term for something, it can be lost.

Kenneth Blaney
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My mistake... turns out I was thinking about trademark. Nevermind.

Mike Griffin
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I wonder if the copyrights and TMs include permission of usage for the pictured brand of keyboard that the precious Keyboard Cat is playing. If not, I would recommend Casio or whomever should go after Schmidt for infringement. After all, the Keyboard Cat is nothing without his keyboard!

...but seriously. Petty meme protection.

Aaron San Filippo
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We actually considered putting a keyboard cat reference in a trailer for the first app we made. Dodged a bullet there I guess!

John Flush
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That looks like a fox at the keyboard and squirrel in the sky I don't know what they are talking about :P

jim moore
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I can't help but notice that Business Cat, who appears on the right, is silent in all this. Clearly he knows something...

Joshua Hawkins
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They don't have a chance in this lawsuit.

Trademarks are meant to prevent counterfeits so it has to be extremely close to the same logo to the point where a consumer would have problems telling the difference between the brand. For example Polo can't prevent anyone from using a Polo player on a horse. So a "poptart flying cat w/ rainbow trails", or a "cat playing a keyboard" are not distinct enough for Trademark law.

Copyrights are meant to prevent the work of another person from being stolen. This is a bit more vague, but there are a few clear rules. Since both these works are short there isn't really a "fair use" case. It's not a direct copy of the work but more the idea of the work. You can't copyright an idea, but you can copyright a series of ideas presented in a certain manner. I don't see a cat playing the keyboard a strong enough series of ideas to hold up in a copyright case. The poptart cat w/ a rainbow trail is much closer to this but I still don't think it's enough to hold up in court especially since it's using 2/3 of it is based on already established icons (cherry poptats, and a rainbow). There's also the idea of considering that these 2 characters are a small percentage of the total game which is considered mostly humorous w/ parodies (I'm assuming I haven't actually played this game).

Anyway it's easy enough to tell that Scribblenauts was parodying a cultural reference, and not infringing on somebody's work. I wonder if it was Schmidt and Torres' lawyers pushing for this case, or the plaintiffs themselves. I'd think lawyers would know better, but I guess if they saw a way to make money they'd go for it.