Warner Bros. and 5th Cell facing Keyboard Cat, Nyan Cat lawsuit

Publisher and developer targeted in Scribblenauts trademark infringement lawsuit from creators of memes.

The creators of Keyboard Cat and Nyan Cat have sued Scribblenauts developer 5th Cell and publisher Warner Bros., accusing the companies of using their memes without consent.

Image credit: Scribblenauts Wiki

Attorneys for Charles Schmidt (Keyboard Cat) and Christopher Orlander Torres (Nyan Cat) filed a trademark infringement lawsuit against the companies at the end of April, according to a description of the case from the Los Angeles IP trademark blog (via Eurogamer).

The Keyboard Cat and Nyan Cat memes appeared in various Scribblenauts games, including the 2009 original DS game, 2010's Super Scribblenauts, 2011's Scribblenauts Remix, and 2012's Scribblenauts Unlimited.

Schmidt and Torres claim they never gave Warner Bros. and 5th Cell license or authorization to use Keyboard Cat and Nyan Cat in the games. The plaintiffs accuse the companies of "shamelessly" using the material to promote and market the Scribblenauts titles and are seeking unspecified damages.

Notably, Schmidt and Torres did not submit trademark applications for Keyboard Cat and Nyan Cat until after the first Scribblenauts game was released, which could hurt the pair's case.

The case is Schmidt, et al. v. Warner Bros. Entertainment, Inc., CV13-02824 JFW (C.D. Cal. CV13-02824). For more, check out the complaint in full.

A Warner Bros. representative was not immediately available to comment.

The next Scribblenauts game is rumored to be a DC Comics superhero game that could be announced as early as the 2013 Electronic Entertainment Expo next month.

Written By

Eddie Makuch is a news editor at GameSpot, and would like to see the Whalers return to Hartford.

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Discussion

136 comments
June-GS
June-GS

LOL. Talk about ambulance-chasers. Pffft. Now I don't much care for the big conglomorates, but who's being "shameless" again?  LAWL

Meta_Dragon
Meta_Dragon

Filing trademark applications AFTER the games were made and then suing WB will get you laughed out of court.

TohouAsura
TohouAsura

Holy fuck, what?

I hope the guys who made this lawsuit get massively fined.

Memes are not your product or merchadise, they are viral internet jokes, not your personal belongings.

I usally hate Warner Bros' practices, but this time, they are completely in the right.

The very fact they could license a meme is already wrong. They have no right. Might as well have someone license the trollface. Idiots.

Raxyman
Raxyman

Great... Now any company will think twice about making funny games by using any user-created content...

These guys are simply idiots, look at how widespread memes are, they might've created, but no longer belongs to them as it became viral. Nyan meme was already a rip-off of two other memes, when will HE get sued?

Adenosine
Adenosine

This issue is not about being a "greedy money grab". It's about people who created the source material not getting anything when somebody else is using their stuff as part of selling a product. The original creators definitely deserve some money.

It's very different if their work was used by some kid to make a cute or funny personal form of media, like a youtube video or a jpg file that says something funny. The kid doesn't make money from those things, he's not using it as a means of helping his business earn money. 

Now think of this. Imagine that you're a creative individual and you just came up with something nice that suddenly catches the attention of the internet. You created this thing just for fun and turning it into a profit generator was not part of the reason. Suddenly, some company takes your creation and slaps it into whatever they're selling. The popularity of your creation helps boost their product. The company earns a lot of money while you don't even get a penny. Isn't this very wrong?

Just because you didn't think of turning your creation into something to make money with doesn't mean others can just use it without your permission to make money for themselves. You created it, you have rights to it. 

There are lots of companies that go after small time people who make things that don't even closely resemble anything in the official company product line just because they think the small time product would misrepresent the official product, therefore affecting public perception and could lead to loss of sales. If they can do that to something that's not even close to the original, then what's wrong with the original creators of a certain item from going after people who didn't even bother to change the form of the stolen material and just outright implemented it in their designs without even trying to reach out and ask for permission?

In this case, I side with the original creators of the memes and the companies using their stuff should be ashamed of themselves and pay up.


TheDromader
TheDromader

What the f**k. Just.... just what the f**k.

meatz666
meatz666

So, should I pay the guy every time I mention or draw a Nyan Cat?

Well, arrest me if you get me drawing one, but, come on!

AlwaysRunning
AlwaysRunning

This is why we need copyright reform. Technically, everything you say, write, doodle on a napkin is copyrighted without your doing anything. If someone finds your napkin doodle in the dumpster and does something with it, you can sue them for "damages." It's ridiculous.

It's also why public domain material is frozen. No one knows who owns all this stuff from a few decades ago, no one is claiming it, but everyone is afraid of being sued. It's killing the arts.

Maui_Lion
Maui_Lion

This is pathetic and have no case.  They were contacted to use the memes in the games, they gave consent, they have no case.  Especially since the nyan cat thing wasn't fully Torres' creation.  It was someone else who took his gif and put it to music, which then caused it to take off.  So in essence, he didn't create the meme in its entirety, just the image.


They won't win.

laser00
laser00

Dafuq?...this is just pathetic...

Kyere
Kyere

What egotistical pricks, wow. The nerve to think you can trademark a meme, let alone absurdly overused and old memes.

_Silent_Jay_
_Silent_Jay_

I think by the very concept of it, you can't actually trademark a meme.

foxrock66
foxrock66

Oh please get over yourselves. 

hadlee73
hadlee73

This is nothing. Imagine the trouble 5th Cell and Warners will be in when *Cthulhu* decides to take "legal" action :P

Halloll
Halloll

so next time someone uses a troll face, they can sue him?

kv5321
kv5321

this makes sense. i'm pretty sure both of these memes were recently used in a commercial to advertise a product. i'm sure they were paid for that; therefore, they should be paid for having their creations appear in these video games. 

rushiosan
rushiosan

They just want money. Money is better than having your meme portraited on a famous game.

Pradmetro
Pradmetro

Internet memes are not something you want to file a trademark, coryright, etc. It's stupid and a waste of time. It's not an investment. If it was, grandpa would be have a nice retirement because of "Y U NO Guy" and how people are using them. 

dr_jashugan
dr_jashugan

Keyboard Cat: "ALL YOUR MEMES ARE BELONG TO US" :-\

TigeronStarfire
TigeronStarfire

So you guys think it's completely fair for Nyan Cat or Keyboard Cat to be put into a game and profited off of?  What if Sega threw Mario into a game with complete disregard for Nintendo's rights to Mario's character?   Would that be fair or right?  

Guys, Chris has a legit case here against Warner Bros.  If they used his character without his permission and particularly as a selling point to make money off of it, AND they didn't remove it when he asked?  He SHOULD go after WB.  No one would want someone to take what they've created to make money off of it, especially if the creators are getting the shaft because of it.  

It's not just simply about being 'used'.  It's in something they're making money off of.  That's the whole point.

Ayato_Kamina_1
Ayato_Kamina_1

Yes they're being shameless, greedy assholes about it... but can any of us say we wouldn't do the same in a similar situation?  If all I had to do was tell a solicitor that I give him permission to fight on my behalf and I might see a couple of grand because of it... of course I'd do it. No work for me and I might get some payout!

chibi-acer
chibi-acer

What?  I didn't even know Nyan Cat was trademarked, nor that it can exist within Scribblenauts.  Plus the fact the trademark was not even submitted until after Scribblenauts was released?  Lawsuit FAIL!

Thanatos2k
Thanatos2k

Did they give permission to the innumerable youtube uploaders using their memes without permission?

That's kind of the point of a meme - NO ONE OWNS IT

GamerofMario1
GamerofMario1

So I guess I can get sued now for saying Keyboard Cat without his consent?

m4a5
m4a5

Good that the trademarks were filed after. Sounds like a pair of trolls...

Mario_VS_DK
Mario_VS_DK

Uh oh, we better not use memes anymore. These companies might sue the internet!

Hurvl
Hurvl

Wow, this is a thing!? You can't use memes like this without the creators consent? I thought memes were everyone's property, but of course, hardly anyone making them or spin-offs thereof ever profited from them. I can has cheezburger and the like are all non-profit even though everyone is ripping off everyone else. It's all fun and games until someone tries to make money out of it - then you get sued.

bksonic123
bksonic123

Probably some lawyer saw them in the game and called up the video creators.

TohouAsura
TohouAsura

@Adenosine I wholeheartedly disagree. They may have made the original joke, but it became famous due to the sharing of teh internet, it's a meme, it's viral, and it's no longer theirs, it's part of the internet culture. Had they licensed it from the start, this would not have happened.

Internet jokes have no copyright on them. They have no real claim. Nyan cat is far from being theirs any more.

Raxyman
Raxyman

@Adenosine I don't remember the logo of Scribblenauts being "Now with keyboard cat and nyan cat!". Truth be told, i never knew it was there until the article. Their memes didn't help selling the game at ALL. It was just some extra content.

GuitaristMatt
GuitaristMatt

@Maui_Lion Also, they might as well sue everyone on the internet for even looking at nyan cat.

Nova_Prime_85
Nova_Prime_85

Oh? So your subject matter expert on the situation and know exactly what had occured between them and warner bros.?

Kyere
Kyere

@Halloll Funny story about that, the dude behind coolface does claim ownership of it as his IP, but willingly allows anyone and everyone to use it freely. He also releases his own lineup of coolface/trollface inspired products through his DeviantART page for some money on the side. But he's never gone after anyone for using it without his express permission for a product. All he cares about is getting the credit in the end for inventing coolface and owning its' intellectual property.


To sum it up in a nutshell; these two efftards are full of it.

Kyere
Kyere

@TigeronStarfire Seeing as people aren't buying Scribblenauts for shitty and old internet meme references, there's not a huge problem here. While it isn't unusual for creators of popular memes to have said meme trademarked. What is unusual is that these two efftards are suing over what has commonly been accepted by meme-authors the internet-over as "Fair Use". As long as credit goes back to the original authors, it can be used by anyone. And if the author of coolface/trollface has that policy, these outstanding and non-avaricious human beings are out of their minds.


Not too mention the trademark was submitted AFTER Scribblenauts was released. Derp.

Kyere
Kyere

@GamerofMario1 Watch out, Bethesda's going to sue everyone for using "Arrow in the Knee" memes. I mean fuck, think of all the recent games and movies to reference that meme. I don't see Bethesda suing companies over it's use.

chuckles471
chuckles471

@bksonic123 Nope, the law firm is legit and not some ambulance chaser.  That was the first thing I looked up and they are not a Saul Goodman type of practice   They represented Metallica against Napstar and that case was huge, they know their copyright law.  That is quite scary.

nigelholden
nigelholden

@Raxyman @Adenosine The idea of massive content is a key feature of the product. Anything that figures into that concept is, in part, selling the game. 

Maui_Lion
Maui_Lion

@Nova_Prime_85  

 Considering that finding the maker of nyan cat is more than easy and even easier to contact, plus I know how things work in these situations, yes.

 You honestly think Torres has a case?  He doesn't.  He's not getting squat.

TigeronStarfire
TigeronStarfire

I disagree. Even if Trollface/Coolface's creator has that policy, that doesn't mean that his standard holds for all cases. And true, while it was trademarked after the original Scribblenauts was released, there have been several games released after it was. WB should have negotiated for the rights at that point. They did not, and that's why this lawsuit exists.

Besides, 'fair use' holds if the work is nonprofit and used for educational reasons. It is not the same if that content is used in a work where people are profiting in part due to that content. And how do you know for a fact that they were asked to be credited in these games?

These two guys are not pricks. Imagine if you created something popular and now a large company takes it and slaps it into their game. And if you don't defend it, now you've set a precedent that anyone can use it without asking you for rights. Hell, I could sell merchandise based off of it and you wouldn't see a dime. Is that fair? No, it's not.

Raxyman
Raxyman

@nigelholden Maybe, but what's importat in here is:

Would Scribblenauts sell any less without those 2 sprites? I don't think so. Maybe if they used the entire Rage faces and Know Your Meme database i might agree that they have rights to pay. Just 2 memes? No way.

Nova_Prime_85
Nova_Prime_85

Ahhh ok, welp good to know

I personally dont know who made any of the meme's, (never cared for it) so its whatever, ive read about silly reasons as to why ppl sued over the past few years, this doesnt surprise me though

All i know is that in the coming weeks. this is going to be an annoyance to see/read as GameSpot updates on this