News Article

Nyan Cat, Keyboard Cat Meme Creators Suing Over Appearance in Scribblenauts

Posted by Tim Latshaw

[Insert rageface of choice here.]

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?

[via eurogamer.net]

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User Comments (100)

Whopper744

#2

Whopper744 said:

I know it was there creation and all, but I really hate it when people get sue happy....just my opinion. I'd take it as a compliment if I was them, but seems like they're not that grateful to me.

Pikachupwnage

#3

Pikachupwnage said:

This is so stupid. This hasn't cost them any money. Just ask them to not Include them anymore.

k8sMum

#5

k8sMum said:

but....but...whenever y'all see a zelda or mario ripoff y'all start with the 'sue 'em! sue 'em'.

it's a goose/gander situation.

HeatBombastic

#6

HeatBombastic said:

Fatso has lost all his respect from me. Obviously, he waited for it to have made enough dough for him to strike. I never knew meme creators were so stuck-up.

Yosher

#8

Yosher said:

Are you serious? Eh, I never liked memes anyway. I just hope this doesn't keep the game from coming out in Europe at all anymore. (Why is that game still unreleased here anyway?! It was supposed to be here ages ago!)

C7_

#9

C7_ said:

Memes can be copyrighted?
That kinda defeats the purpose doesn't it?

Void

#11

Void said:

I thought affectionate parodies were allowed.

And I never knew they made any money off those memes either.

Haxonberik

#12

Haxonberik said:

The Nyan cat was in since the original one? I just discovered it on Unlimited, having played every game (including Remix) :s

Geonjaha

#13

Geonjaha said:

@C7_ - They can but trying to control them is simply impossible. When it comes to a big sue-able company though they're obviously happy to do so!

C-Olimar

#14

C-Olimar said:

Nyancat, yes. The suit is warranted.
But if I put a cat on a keybpard am I infringing a trademark?

SuperKMx

#15

SuperKMx said:

My cat used to sit on my Amstrad CPC 464 keyboard back in 1987. Does that mean I have a case too? You can't copyright "thing being near other thing" surely? If you can, then I want to copyright "Person being photographed near Niagra Falls" - and I'm taking everyone to court who ever had a photo taken at Niagra Falls.

Gridatttack

#18

Gridatttack said:

Seems odd, really. Why sue over a meme appearing in a game? Those meme's are like everywhere...

Dodger

#22

Dodger said:

Given Keyboard Cat has been in since the first game, it is a bit strange they didn't notice earlier. Also a bit strange that Fifth Cell didn't make sure they had permission.

Wowfunhappy

#23

Wowfunhappy said:

This sets a really bad precedent.

Shouldn't this be fair use? Nyan cat doesn't look exactly like Nyan Cat, and his implementation is clearly done in a tongue and cheek way. It's not a major, advertised feature of the game.

evanescent_hero

#25

evanescent_hero said:

This is the stupidest thing I've ever heard. If I saw my meme (how anyone can say "my meme" with a straight face is beyond me) in a video game, I'd be flattered, and I wouldn't sue. The game has millions (at least) of summonable items. Nyan Cat and Keyboard Cat aren't selling points, they're not advertised as being in the game, and they're only there if you look for them. The game has a time machine, for god's sake. These people aren't losing any money. It's also worth noting that things like Longcat are in the game as well, yet you don't see Longcat's creator throwing a fit.

I mean come on. Can Nintendo sue Ubisoft because Ezio's uncle says "It's-a me, Mario!" in Assassin's Creed II? Do they have legal grounds for a lawsuit if another game uses an item that functions like a Hookshot? Should they be entitled to compensation because PlayStation All-Stars Battle Royale takes the concept of Smash Bros. with Sony characters? No! This is insane.

@k8sMum An internet meme and a highly valuable piece of intellectual property aren't in any way comparable. Copying a video game and selling it as your own isn't the same thing as dropping a piece of pop culture in a game for those who look.

HipsterDashie

#26

HipsterDashie said:

A lot of people seem to be very quick to side against the creator of Nyan Cat, calling him a greedy, money-grabbing scumbag. IANAL, however, has anyone considered the following?

> Nyan Cat has been a registered property since 2011, so it has the same protections as any of WB's characters. I'm sure if anyone were to use WB's characters commercially without gaining permission from them, WB would be straight in there with a lawsuit.
> As a registered property, the owner of Nyan Cat has a legal obligation to protect his trademark. If he does not take appropriate steps to defend his trademark (i.e. requesting royalties/removal of the character from the game) then he loses his rights to the character, and then any company can use it for commercial purposes. I.e. he can't NOT sue.
> The creator is said to have approached WB and 5th Cell amicably to begin with, however both companies merely brushed them aside. Not a very professional way to deal with the situation imo. This also shows the creator hasn't just bombed straight into a lawsuit without prior discussion.
> Many other companies choose to licence Nyan Cat, so why not WB?
> This does not in any way affect "fair use" of the character, i.e. non profit/derivate/parody works. This is a situation where someone else's creation has been used commercially.

The creator has posted his account of current events here: http://pastebin.com/rzbyw7YP

Personally, I feel as if a lot if misinformation is being spread, and as I am on speaking terms with the creator, I feel obliged to spread his side of the story. Don't forget, he is the little guy standing up against the big guy. Why are we shooting him down?

EDIT: "neither meme was trademarked until 2010, a year after the first Scribblenauts game emerged."

But Nyan Cat wasn't created until April 2011, irrc...

WesCash

#27

WesCash said:

Seems strange that they wouldn't have gotten permission originally, but it's just as strange that this wasn't an issue in 2009.

Melkaticox

#29

Melkaticox said:

"Including, most recently, 'Scribblenauts Unlimited', which WB released in 2011."

...No they didn't.

Kyloctopus

#32

Kyloctopus said:

I found it a little strange with all those Catmemes, it sounds like some form of copyright, but ignored it because its such a miniscule part of the game.

k8sMum

#35

k8sMum said:

@evanescent_hero An internet meme and a highly valuable piece of intellectual property aren't in any way comparable. Copying a video game and selling it as your own isn't the same thing as dropping a piece of pop culture in a game for those who look.

an internet meme becomes one because of its popularity. it has nothing to do with how much work went into it. something either takes off or it doesn't.

are you the judge of what is intellectual property and how much value they have? was the meme created by someone or did it magically spring to life on its own? does popularity, which makes it part of pop culture, remove any ownership rights? is the meme trademarked? is the trademark being violated?

just because you see minimal value in something doesn't mean it has no value, especially to the artist who created it.

nintendo is very protective of its intellectual property, and rightly so. i am pretty sure 5th cell is protective of theirs. why is it wrong for this person to protect his trademarked creation?

it's not.

creepingdeth21

#37

creepingdeth21 said:

@k8sMum its an easter egg! its hidden in the game! its not like they tried making money off of their creations! they liked them enough to take the time and add them in their game. those greedy barstewards just happened to find a quick way to get money. i would be honored if that would have happened to me

k8sMum

#40

k8sMum said:

@creepingdeth21
did you bother to read any of @Hipster-Dashie's post? what do you think trademarks are for? to look pretty? they have a purpose.

i don't know if the scribblenauts are in the wrong or not, but there are legalities to this that need to be addressed. name calling of someone trying to protect their property doesn't add a damn thing to the discussion.

Morphbug

#41

Morphbug said:

"We need some money, any ideas?"

"I think I your meme cat in a video game some years ago, wanna sue them?"

"Yeah, why not?"

But yeah... These are copyrighted characters being used in a comercial game with nothing in return, their creators have all the right to sue.

Tsukun

#45

Tsukun said:

Frankly, I'm disgusted at many of the comments here. They broke the law by using his copyrighted character in a commercial product without permission. WB and 5th Cell have to follow the law too. Just because you like their game doesn't mean they are above it.

9th_Sage

#46

9th_Sage said:

I get that he probably has a case here, but still...disappointing to hear about them being in a legal battle. I hope it gets resolved quickly.

Morphbug

#47

Morphbug said:

@Ernest_The_Crab: If I remember correctly, the creator of Nyan Cat posted the original image (along with the song) in his personal comics site, it wasn't the first of his "make weird gif and play a song in the background" creations either.

9th_Sage

#48

9th_Sage said:

er, wait a second...it's kind of messed up that Nyan Cat is involved here...did he own the song? I thought I'd heard that originated among the Hatsune Miku fandom in some way or another. I suppose it's the image that is the important part here though.

TrueWiiMaster

#49

TrueWiiMaster said:

Seeing as how it's pretty much everywhere anyway, and they didn't even have a trademark until after Scribblenauts was out with the character in it, this all seems pretty stupid. On top of that, it's been years since they got their trademark. Did they never take any legal action before this?

rayword45

#50

rayword45 said:

I have no respect for gaming lawsuits solely due to Konami vs. Roxor.

Thus, you can burn in hell for all I care Torres.

evanescent_hero

#51

evanescent_hero said:

@grimbldoo This is my exact point. They COULD sue, but there's no point.

@k8sMum It wasn't trademarked when they put it in in the first place. Why would they think a meme would be trademarked? Is "My body is ready?" trademarked? How about troll face? And Grumpy Cat? Or "let me explain you a thing"? What about "The cake is a lie"?

They're memes. Never for even the briefest second would it cross my mind that any meme that wasn't directly ripped from something copyrighted was copyright protected. ("Shut up and take my money!" for example. I don't think Valve owns the rights to "The cake is a lie" as its never said in the game, and it's not like Nintendo's laid claim to "My body is ready.") Anyway, my point is that it wasn't legally trademarked when it was put in the first game, and thus, from the developers' point of view, was safe to keep using. Maybe these guys deserve money. Maybe not. But my original point to you is that using memes is different from ripping off whole games.

MasterWario

#52

MasterWario said:

I can understand Nyan Cat, but Keyboard Cat is too ambiguous imo, unless it's specifically stated that it's the Keyboard Cat (or Fatso).

Sheesh, people should just learn to get permission for commercial things. But, then again, I'm not entirely sure of the situation, hence why we get court to work this stuff out and not MasterWario.

evanescent_hero

#53

evanescent_hero said:

@k8sMum Lemme further explain my point. I agree with you that technically there is legal basis to sue. Hell, they might even win. I just don't think there's any point to it. There's a difference between including a meme or a slice of pop culture in your game, and blatantly making and selling a game called Fyan Bat about a danish with a bat head who soars through the sky to chiptune. Yes, Nyan Cat was included in a game that was sold for money. So? In Terraria, a for-profit PC indie game, you can make a Link or Mario outfit for your character. Sure, Nintendo could sue, but they won't, because the inclusion of those references is a harmless display of fandom. That's all I'm saying.

Squiggle55

#54

Squiggle55 said:

There is no damage here, and 5th cell certainly didn't make money off of these Easter eggs. If anything this was free advertising and the type of friendly parody that they should be proud to see in a video game. Also, shame on them. You are nobody.

Tsukun

#56

Tsukun said:

Do you people not understand copyright? Nyan Cat was Copyrighted back in 2011. It has a lot of officially licensed merchandise and a downloadable game. They took this copyrighted character without permission. They put it in this game that they're selling for profit. It may just be a small thing, but you can bet that if he used Bugs Bunny, or another WB character for profit without permission they'd be all over him. Other companies have gone through processes to use Nyan Cat officially, why should WB be any different?

Heck, if somebody did the same with Mario, Sonic, Mickey Mouse, or another character without permission, There's no doubt about it that their respective owners would sue. They have to protect their creations. This is seriously no different.

I swear that sometimes the people that comments on this site are very...irksome.

Jukilum

#57

Jukilum said:

@evanescent_hero Actually, "the cake is a lie" is written on the wall in one of Ratman's dens in the first Portal game.

The Nyancat guy has a good case because the character is original. Keyboardcat, maybe. I think that the lawsuit rests on the use of Nyancat.

And something that nobody seems to be grasping is that a copyright comes into existence the moment the work in question is created. Registering a copyright makes it easier to defend, but you can still defend your copyright provided that you can prove that your work existed before it was used by someone else.
Trademarks on the other hand become invalid if it moves from being a Proper noun to just a noun in public use. For example, Kleenex, shopvac, and even dumpster all used to be registered trademarks. All of those names became are now used to refer to anything that is in that same roduct category. However, when someone refers to Nyancat they don't mean A Nyancat, they mean THE Nyancat. I'm not sure about Keyboardcat. It does seem though like that would be something you could trademark, but I'm not so sure about copyright unless it was that SPECIFIC picture/video. I'm also unsure of if Trademark comes comes into existence the moment something is made. I don't think it does.

SammyOfMobius

#58

SammyOfMobius said:

Some people sue others over the stupidest things. Although it would be funny if mariotehplumber sued Sega for not bringing back Classic Sonic and not getting rid of Modern Sonic. :D

SMW

#61

SMW said:

All I can say is "lol."

Assuming no-one has a copyright on it...

Expa0

#63

Expa0 said:

Oh you silly americans always suing each other over every tiny detail.

SCAR392

#64

SCAR392 said:

Come on... I was making my dog play piano since before Youtube was even around.
If anything, Disney should be sueing since Aristocats has been out since the 70's. Case dismissed.
This person isn't even making money off the cat piano thing by being a free video on Youtube, and I seriously doubt that it's copyrighted or registered on anything.
Expect a patch to replace the cat with a dog, now.

SCAR392

#65

SCAR392 said:

Looks like the Retro City Rampage creator is gonna get sued by over 20 different companies at once...

evanescent_hero

#68

evanescent_hero said:

@Jukilum Ah, you're correct, Valve owns that one themselves.

My opinion remains, though, that this suit is valid from a legal standpoint but moronic in practice.

SunnyShores

#69

SunnyShores said:

well they are a company and they SHOULD know not to do this kind of thing. so i agree. sue'em

DESS-M-8

#71

DESS-M-8 said:

@C7_ Exactly!!!!!! Just another example of the 'let's sue everybody' claims culture spawned in America. Absolutely ridiculous. If nyan cat was an established franchise and wasn't used before he even applied to copyright something which, at it's very purpose, is designed to be free source and free from copyright, like say..... Mickey Mouse, then he should probably ask where is my copyright money you thiefs.
A brief cameo of a non trademarked character as a nod to popular culture serves as advertising to Nyan cat, and hardly as a driving force to sell Scribblenauts. Would you buy Scribblenauts to play a great game? Or just so you can briefly see a meme cat?
Absolute, disgusting, money grabbing, moral less, piece of filth.

Pod

#73

Pod said:

There's no meat on the bones of this case.

The "infringed" material wasn't in any of the promotional materials, meaning they aren't making money off "selling" NyanCat and KeyboardCat and none of those names have been trademarked in the first place.

As far as copyright goes, the resemblance is far enough removed to fall under caricature and/or parody.

The law has spoken.

edhe

#76

edhe said:

Remember kids, draw some poopy pixel art and steal appropriate a vocaloid track and you too could one day be a creative genius.

They're right to sue though. As stupid as it is that they were awarded a copyright for their respective ideas, WB were in the wrong. They repeatedly declined their requests for dialogue, and they did use both memes in promotional footage.

MrL1193

#77

MrL1193 said:

What is with all these copyright lawsuits lately? This is getting ridiculous...

Pod

#79

Pod said:

@edhe

Both of the memes were in the promotional footage? I'd like a link a video of that, as it isn't something I ever saw.

edhe

#81

edhe said:

@Pod

I was going by the claims on pastebin in the article. It turns out the video footage is actually a PewDiePie video (yeah...). The Pastebin links to the Scribblenauts Wiki which suggests that Nyan Cat was shown in the E3 2012 preview of Scribblenauts Unlimited. Also linked is an image with Nyan Cat in it which could be a still from the E3 trailer itself.

Untitled

Mortenb

#82

Mortenb said:

It's not a violation of a Trademark so long as one does not use it to identify ones own product (which they might have done). Nyan Cat is possibly copyright, but in my opinion it should be ok to use certain copyrighted material like this for reference uses. This references popular culture, and is not a work about Nyan Cat itself, so I think a judge would rule it to be fair use. However, if they made a game where Nyan Cat was one of the main characters, that would certainly violate the copyright and trademark (if it's possible to be a meme and a trademark at the same time, seems a contradiction in terms somehow).
Similarly, I think it would also be ok for Microsoft to make a game where Mario appeared briefly in a similar fashion as he is at this point not separable from the game culture. However, if they sold a game about Mario, or where he was a main character, it would violate both trademark and copyright.
Keyboard cat is just that, a cat and a keyboard. It is not distinct enough to make a claim that it is anyone's "creation", and it has certainly not been used as a trade mark.

manu0

#83

manu0 said:

It's pretty simple to me: They should have at least asked...people should communicate more and better, then we wouldn't have so many pointless law suits...

Drewroxsox

#84

Drewroxsox said:

Tbh, I didn't even know this was in the game... Now it's time to have some fun with keyboard cat :)

creepingdeth21

#85

creepingdeth21 said:

@k8sMum i read it after i posted what i posted. and even though i'm disappointed in wb for being unprofessional by ignoring them, my stance about them remains. they werent trying to make money off their properties, they were hidden. doesnt excuse a major company for ignoring them though

DarkKirby

#86

DarkKirby said:

This is like that episode of South Park were the internet celebrities are demanding real life money for being popular.

k8sMum

#87

k8sMum said:

fair enough, @creepingdeth21. as i said, i do not have all the facts in this and don't know who is in the wrong/right. whilst many suits are frivolous, not all are.

i just dislike seeing all the name calling and nastiness that seems to occur whenever anything goes against what many tend to blindly see as attacks on nintendo or any fav games.

'gets right up my nose' as mrs. slocombe used to say.

creepingdeth21

#88

creepingdeth21 said:

yeah i was speaking with anger at the time. and yeah name calling isnt necessary so i apologize. i just dont see the reason for lawsuit, especially during a rough time for the video game industry.

Assassinated

#89

Assassinated said:

Isn't the entire point of a meme to be spread around as much and by as many people as possible? The references were added as Easter eggs. They weren't even trademarked at the time. I doubt Scribblenauts takes out any previously accepted words between games, unless a big stink is raised about it. But seriously, memes by nature get used by anyone who wants to. Attempting to charge one for doing it would effectively leave the meme dead in the water.

MagicEmperor

#92

MagicEmperor said:

I could have missed something, but these meme guys sound like a bunch of whiny, litigious goofs. I can understand protecting your property, but frickin' Nyan Cat? Keyboard Cat? Is this really necessary?

Drobotic

#94

Drobotic said:

OK,so let me get this straight.They didn't do anything about it after 3 games were released with Nyan Cat in it?Makes no sense,just like the PETA.Now I'm gonna go back to riding a Nyan Cat across the universe on my adventure with a magical telepathic narwhal.Hope this crap gets settled.

Marioman64

#97

Marioman64 said:

ugh, idiots. they should be happy they even put those in the game, and proud their cats got super popular in the first place. you can't reign in something that has gone viral when it was originally a free thing

DarkKirby

#98

DarkKirby said:

If you take a look at the Nyan Cat "copyright" it hilariously avoids saying that Nyan Cat is part Pop Tart which is obviously what it was based on.

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