When your fame comes from getting plastered in every corner of the Internet possible, a nod in a videogame may seem a positive thing. The originators of Nyan Cat and Keyboard Cat (known in everyday life as Fatso) do not appear to agree, having hit developer 5th Cell and publisher Warner Bros. with lawsuits arguing copyright and trademark infringement.
The two memes have appeared as Easter eggs in the Scribblenauts franchise since the first game for the Nintendo DS in 2009, continuing through Super Scribblenauts, Scribblenauts Remix for iOS and most recently Scribblenauts Unlimited for the Wii U and 3DS in 2012. In a complaint filed in Central District of California U.S. District Court, Nyan Cat creator Christopher Orlando Torres and Keyboard Cat documentarian Charles Schmidt allege the likenesses of their memes were used without express permission:
[F]or the past three years, WB, along with game developer 5th, have knowingly and intentionally infringed plaintiffs' copyrights and trademarks by using “Nyan Cat” and Fatso's image in WB's top selling 'Scribblenauts' games,Including, most recently, 'Scribblenauts Unlimited', which WB released in 2011.
The given year for the release of Scribblenauts is incorrect in the above quote, but is cited correctly elsewhere in the complaint. A timing issue that may be more problematic to Torres and Schmidt’s case, as cited by Eurogamer, is the fact that neither meme was trademarked until 2010, a year after the first Scribblenauts game emerged.
Do you think the cat meme creators have a legal leg to stand on, or will this case be played off before it even begins?