When Memes Go Corporate: Creators Of Nyan Cat And Keyboard Cat Sue Warner Bros.

from the it's-a-meme,-get-over-it dept

Two of the most well known internet memes of the last decade are probably keyboard cat and Nyan cat. You may think they're silly, pointless or stupid, but there's no denying the incredible level of "memeness" each has reached. And yet, as many of you submitted, the creators of both are now suing both Warner Bros. Entertainment and 5th Cell Media for including both memes in the Scribblenauts game without licensing them. Charles Schmidt, who created Keyboard Cat and Chris Torres, who created Nyan Cat have teamed up here for this lawsuit.

The lawsuit is somewhat amusing to read, explaining what memes are, and how these two memes are especially well known. But then it gets a little wacky, claiming that Warner Bros. logo is also a meme, even though it is not. The point they're trying to make, obviously, is that "memes" can be protected by trademark or copyright law.
The "WE" 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.
Except that's not true. Their logo is a logo, not a meme. They try to redefine meme to their own purpose. Look up most standard definitions of a meme in any dictionary, and you get something involving how it is passed from one person to another:
  • Random House Dictionary: meme: a cultural item that is transmitted by repetition in a manner analogous to the biological transmission of genes.
  • Merriam-Webster: meme: an idea, behavior, style, or usage that spreads from person to person within a culture
  • Answers.com: meme: A unit of cultural information, such as a cultural practice or idea, that is transmitted verbally or by repeated action from one mind to another.
  • Collins English Dictionary: meme: an idea or element of social behaviour passed on through generations in a culture, esp by imitation
  • Wikipedia: meme: A meme acts as a unit for carrying cultural ideas, symbols, or practices that can be transmitted from one mind to another through writing, speech, gestures, rituals, or other imitable phenomena
There are many more where those come from. But the key bit is that they all require the meme to be shared from person to person. That's what makes it a meme. The word originated from Richard Dawkins, who meant for it be analogous to biological propagation through "imitation" as things get passed around. Yet that key element -- the transmitting by passing from person to person -- is conveniently left out of the definition presented by the lawyer for these meme makers, which allows them to falsely claim that Warner Bros.' own logo is a meme. It is not. It did not gain cultural significance by being passed around from person to person.

And that, really, is the key issue with this lawsuit. Neither Nyan Cat nor Keyboard Cat took on cultural significance because of Schmidt or Torres. On any day you can find thousands upon thousands of similar videos. Like most good memes, these two took on cultural significance because of everyone else who took on those ideas and did something with them. For those two to step back in now and claim "ownership" over the memetic quality of their works is insulting. It's a slap in the face to the community of folks who made those two memes popular.

I know that some people think that this lawsuit is justified because it's "individuals against a big company" -- including a big company like Warner Bros. which has a history of being an obnoxious copyright and trademark maximalist. But just because one company is an abusive maxmialist, doesn't mean others need to stoop to the same level against it.

In the link above about this lawsuit, lawyer Milord Keshishian also points out some other problems, in that the meme makers certainly took their sweet time in registering their copyrights:
Plaintiffs, however, mistakenly demand statutory damages and an enhancement of damages under 17 U.S.C. § 504, and mistakenly believe that they are entitled to attorneys’ fees and costs of suit under 17 U.S.C. § 505. Defendants are accused of infringing both copyrights in their initial 2009 release of the video games and neither copyright was registered until 2010. Thus, neither Plaintiff is entitled to statutory damages or attorney’s fees, a prerequisite of which – per 17 U.S.C. § 412 – is either registration before commencement of any infringement or within three months after the first publication of the copyrighted work. Further, both the Keyboard Cat video and the Nyan Cat video were published over five years before the application to register the copyrights were filed, thus they are not entitled to a presumption of validity afforded by 17 U.S.C. § 410(c).
The creator of Nyan Cat has tried to defend the lawsuit, but his argument is basically that he just doesn't want it used by a for profit company without him profiting too. Of course, I do wonder if the creator of Nyan Cat properly licensed the use of the pop tart that makes up Nyan Cat's body...

This whole lawsuit seems particularly silly. The two creators of these memes have benefited massively not from their own efforts, but from the fact that millions of people passed around their silly works to make them famous. Having those same memes appear in a video game just further increases the awareness and lore behind these two memes. It provides plenty of additional opportunities for the two of them to profit themselves if they wish. But suddenly filing a lawsuit and demanding money from others is just lame.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Akari Mizunashi (profile), May 3rd, 2013 @ 7:19am

    But there's a small issue with this "ridiculous" label being used.

    WB (et al) purposely twisted copyright so that works could be grandfathered in, and then filed copyrights when the law was passed, making this case reasonable.

    How one files a copyright should be not on the merits of the case itself. The law specifically stipulates a copyright must be filed if a suit is to be present.

    It seems to me these two were actively trying to protect their copyrights now that the freaking planet has gotten "IP" crazy.

    Oh, and this isn't a coincidence, either. The copyright office has been swarmed with registrations of works from many decades, all now filed for protection against use.

    As far as WB is concerned, this is just another example of "Do as we say, not as we do".

    They violated copyright and are now trying to squirm their way out of it.

    Perhaps they should have thought better of copyright than pay off a government to make such broad paragraphs in copyright law.

    You can bet the next changes, soon to come since Mouse is set to enter the public domain, will fix this "restriction" of filing copyright.

    Any takers?

     

    reply to this | link to this | view in thread ]

  2.  
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    Ninja (profile), May 3rd, 2013 @ 7:29am

    I never knew it was copyrighted (as in actively copyrighted and not automatically copyrighted). Still, I vote to make the studio's lives a living hell with copyright. Make them spend a whole shitload of money with several tons of lawyers just to try to create anything. Maybe when they are harmed enough by the monstrosity they created we'll see things getting better ;)

     

    reply to this | link to this | view in thread ]

  3.  
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    Leigh Beadon (profile), May 3rd, 2013 @ 8:11am

    Re:

    I think in cases like these, two copyrights make a wrong.

     

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  4.  
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    Zakida Paul (profile), May 3rd, 2013 @ 8:34am

    Memes and Cats

    Two things I am sick of seeing on the Internet.

     

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  5.  
    identicon
    Anonymous Coward, May 3rd, 2013 @ 8:37am

    I always find it amusing when a large filer of "frivolous" IP suits get attacked by a frivolous IP protection suit.
    The result is that it usually makes the bigger naysayers of "Fair use" raise it themselves as a shield.
    Though that is not exactly what is happening here, it is the same pattern.

     

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  6.  
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    weneedhelp (profile), May 3rd, 2013 @ 8:54am

    "both memes in the Scribblenauts game without licensing them"
    Culture... they just dont get it. When your meme has a team of lawyers... there's a meme in there somewhere.

     

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  7.  
    identicon
    Nich, May 3rd, 2013 @ 8:55am

    But surely..

    This is actually just a standard open source thing...?

    In effect, Some open source licenses allow non profit companies or people to do stuff with the licensed item, but if you want to make money t out of it, you have to buy a commercial license.

    That would seem to be exactly what these guys are arguing...

     

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  8.  
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    Trails (profile), May 3rd, 2013 @ 9:03am

    Re: Re:

    BAZINGA!

    Try the fish, Leigh will be hear all week!

     

    reply to this | link to this | view in thread ]

  9.  
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    Leigh Beadon (profile), May 3rd, 2013 @ 9:04am

    Re: But surely..

    afaik neither meme was ever published under an open source or creative commons license or anything like that

     

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  10.  
    identicon
    out_of_the_blue, May 3rd, 2013 @ 9:08am

    Actually, WB should pay the public through high taxes.

    For use of this "meme", besides permission to exist. The underlying principle is that WB is taking value that it didn't even a tiny bit help create, as should apply to everyone; here those more directly involved are getting greedy too; there's no limit on greed, yet there should be. Right now, corporations are pretty much advantageous all around (to those who own them), while in the pre-Reagan past, corporations were subject to regulatory scrutiny at every turn and actually had to pay taxes (unlike Google and Apple and many others with their off-shore dodging). -- Unlike the current propaganda myth has it, those days of "high taxes" were actually better for the 99%, "cutting taxes" was just another swindle by The Rich.

     

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  11.  
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    Anonymous Coward, May 3rd, 2013 @ 9:09am

    Just a heads up, but Chris Torres is the creator of Nyan Cat. It appears Orlando is his middle name.

     

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  12.  
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    Akari Mizunashi (profile), May 3rd, 2013 @ 9:19am

    Re:

    Yeah, there are two types of copyright: automatic, which now covers this very post, for example, and registered, required when filing lawsuits.

    This is the blanket coverage the entertainment industry wanted, as it severely cuts their costs of registering while giving them the option to do so when they're suing.

    As we've seen in the past, there have been times record labels were trying to sue without having the works registered, which ultimately lead to the cases being tossed out.

    It's disgusting, but it's also expected from an industry which can, with a straight face, vilify copying as a crime worse than a serial killer.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, May 3rd, 2013 @ 9:19am

    In before MPAA chimes in on the case in support of the obviousness of fair use defence!

     

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  14.  
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    Anonymous Coward, May 3rd, 2013 @ 9:33am

    WB will most likely win in this case and I somewhat agree with that. I do not like it since it looks like big business taking from the little guy but it is a meme and they become popular because everyone shares them. If WB tried to suddenly start enforcing its hold on the meme then that is when the owners should go after WB.

     

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  15.  
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    Ninja (profile), May 3rd, 2013 @ 9:36am

    Re: Re:

    I think even half a copyright would make 2 wrongs nowadays.... *wink wink*

     

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  16.  
    identicon
    Anonymous Coward, May 3rd, 2013 @ 9:46am

    Of course, I do wonder if the creator of Nyan Cat properly licensed the use of the pop tart that makes up Nyan Cat's body...

    I pretty you can't copyright food, however you it would you question would be valid if you asked about the music in the Nyan Cat. They toke it from a Nico Nico video.

     

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  17.  
    identicon
    Digitari, May 3rd, 2013 @ 9:56am

    Re: spell checkers suck

    "The "WE" 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."

    Shouldn't that be "WB" or did the picture of the shield get cut off somehow?or did I miss something??

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, May 3rd, 2013 @ 9:59am

    Re: But surely..

    Open source does allow commecial use such as is the case with red hat and google using linux or apple forking KHTML into webkit.

    While it's true in both cases those companies had to follow a copyleft requirement to pass on those same freedoms they recieved that is not the same thing as a commecial use restriction

     

    reply to this | link to this | view in thread ]

  19.  
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    John Fenderson (profile), May 3rd, 2013 @ 10:02am

    Re:

    I think this case is an abuse of copyright. That Warner is a bad actor is irrelevant to the issue.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, May 3rd, 2013 @ 10:03am

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    reply to this | link to this | view in thread ]

  21.  

    The obvious solution...

    The obvious solution would have been to use the MooGNU instead (see http://archive.org/details/M00GNUhttp://archive.org/details/M00GNU for more details). But, of course, which manager would like to release a GPL'd Scribblenauts only because of that?

     

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  22.  
    identicon
    Anonymous Coward, May 3rd, 2013 @ 10:17am

    Re: Re:

    I agree this is abusing the system, but I don't consider the fact the Warner is a bad actor to be irrelevant at all.

    In fact, I find it to be one of the most relevant parts of the story. For if companies like Warner hadn't been pushing so hard for exactly this sort of thing, then we wouldn't keep finding ourselves reading stories like this.

    Sorry, but if these are the rules that companies like Warner, Disney, Universal, and Sony want to lay down, then I have no sympathy when they get screwed by them in return.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, May 3rd, 2013 @ 10:26am

    I think someone should sue the pants off of them just to give them a taste of their own medicine. even if I personally don't like nyan cat or keyboard cat (never knew about them until now)

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, May 3rd, 2013 @ 10:27am

    I happened to enjoy Scribblenauts (in its Nintendo DS installments) and the creators' clever use of popular memes in their games. I had no belief that the games were sponsored by the memes' creators at any time.

    With that in mind, explain to me just how this is causing these guys any "damage". The memes' inclusion in Scribblenauts was just a friendly homage to a popular Internet meme.

    I maintain that the derivative works right should be abolished, in part because it goes against centuries of artistic tradition, as exemplified by cases like this.

     

    reply to this | link to this | view in thread ]

  25.  
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    Anonymous Coward, May 3rd, 2013 @ 10:28am

    Link failure

    HAHA

     

    reply to this | link to this | view in thread ]

  26.  
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    Leigh Beadon (profile), May 3rd, 2013 @ 10:48am

    Re: Re: Re:

    I was using Hollywood studio math -- there are no rules!

     

    reply to this | link to this | view in thread ]

  27.  
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    John Fenderson (profile), May 3rd, 2013 @ 11:06am

    Re: Re: Re:

    Oh, I have no sympathy for them. This isn't about sympathy. This is about the idea that abusing the law is bad, regardless of who does it or who it is being used against.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Dood, May 3rd, 2013 @ 11:22am

    Strike first

    Maybe it's a strike first mentality. We've seen it time and time again a corporation taking something in the public domain, capitalizing on it, then making ownership claims. Strike now to avoid future lawsuits.

     

    reply to this | link to this | view in thread ]

  29.  
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    gorehound (profile), May 3rd, 2013 @ 12:13pm

    Warner is a Company that does deserve to be Sued.And I would sue them for the absolute Maximum possible.I am very glad to see the small ones stand up against the big boys.
    Especially Companies like WB who routinely disrespect us and who have pushed for more and more Copyright............over and over again.

    Hope Davey Screws the hell out of Goliath !

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Arthur Treacher, May 3rd, 2013 @ 1:41pm

    Re: Actually, WB should pay the public through high taxes.

    OK, who's faking "out of the blue"? The above post isn't that bad, even if it's not that good. I was actually hoping to see an out_of_the_blue post that was obvious shilling, but instead, I get anti-corporate flack. What's up with that? Are there *2* OOTB's? And given OOTB's stance about the agony and labor of creation that grants you property rights to an idea, why isn't the above OOTB hitting the anti-Warner gong a little harder?

     

    reply to this | link to this | view in thread ]

  31.  
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    Wally (profile), May 3rd, 2013 @ 2:12pm

    Notice that it was over permission of use in a commercial product. It wasn't over money...just permission, which is something you should always do when commercializing a product that includes works not of your own. I'd say that they are holding copyright to what it really is. You simply ask permission of use.

    The thing is that these works have been tangibly expressed...which in layman's terms, it basically means you are free to do as you pleases with them...but not make money off of them. This is authorship protection.

     

    reply to this | link to this | view in thread ]

  32.  
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    Wally (profile), May 3rd, 2013 @ 2:16pm

    Re: Re: But surely..

    Yes! Exactly...it is very prudent to just ask permission to use such works when that is the situation. It isn't just prudent but the law to do so. They have very right to sue over this case. The caveat is that you can also do what you wish with Nyan Cat as long as you do not make money from it.

     

    reply to this | link to this | view in thread ]

  33.  
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    Wally (profile), May 3rd, 2013 @ 2:19pm

    Re:

    It is not about supposed damages done to the authors. It is about permission to use the works which were actually filed for under copyright before they were added to Scribblenauts.

     

    reply to this | link to this | view in thread ]

  34.  
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    Mike Brown (profile), May 3rd, 2013 @ 3:03pm

    Re:

    Nah, we just enjoy seeing people hoisted on their own petard.

     

    reply to this | link to this | view in thread ]

  35.  
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    Internet Zen Master (profile), May 3rd, 2013 @ 3:31pm

    Re:

    This. If you're going to use something in a commercial venture, at least ask for permission from the owners first.

    On a related note, since this is related to memes in general, I wonder how the whole Slenderman phenomenon factors into this. There's already an independent studio releasing a film named "Entity" into theaters this July that is basing itself on the Slenderman mythos, which makes me wonder: did they ask permission from the makers of Slender/Slenderman's creator to use Slenderman for their movie (doubt he'll be referred to as Slenderman, but it's hard not to instantly recognize tall, dark and faceless at this point.)?

     

    reply to this | link to this | view in thread ]

  36.  
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    nasch (profile), May 3rd, 2013 @ 5:36pm

    Re:

    The thing is that these works have been tangibly expressed...which in layman's terms, it basically means you are free to do as you pleases with them...but not make money off of them.

    That is not what copyright says.

     

    reply to this | link to this | view in thread ]

  37.  
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    Wally (profile), May 3rd, 2013 @ 5:58pm

    Re: Re:

    Yes it does...that is according to the US copyright office. If you did not create the work, you cannot make money off the work without permission from the creators of said work. You can do what ever you wish with it...even make it a meme...but if you make it a part of a money making scheme like a download center..you have to get it licensed. The tangible expression (which is a fancy word for meme..like "adhesive bandage strips" (what they are) being called BandAids (Johnson and Johnson's brand of adhesive bandage strips)) clause allows it to be freely recreated *but not re-branded* without permission as long as the newer creation does not make money.

    That, nasch, is only part of the problem. Both Nyan Cat and Keyboard Cat were filed under copyright long before Scribblenauts added them in. The whole case is about permission to use them. Had the authors.

     

    reply to this | link to this | view in thread ]

  38.  
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    Wally (profile), May 3rd, 2013 @ 6:01pm

    You know, something quite interesting might happen....it is not the first time either works have been misrepresented by people posing as the people who actually created them.

     

    reply to this | link to this | view in thread ]

  39.  
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    nasch (profile), May 3rd, 2013 @ 6:46pm

    Re: Re: Re:

    that is according to the US copyright office. If you did not create the work, you cannot make money off the work without permission from the creators of said work. You can do what ever you wish with it...

    "Making money" is not one of the exclusive rights granted by the copyright statute. You also cannot "do whatever you wish with it" as long as you do not make money. You cannot violate any of the exclusive rights unless it's fair use, whether you make any money or not. And you can make as much money as you want with it as long as you do not violate any of those rights.

    The tangible expression clause allows it to be freely recreated *but not re-branded* without permission as long as the newer creation does not make money.

    That's just completely false.

     

    reply to this | link to this | view in thread ]

  40.  
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    Mike Masnick (profile), May 3rd, 2013 @ 10:30pm

    Re: Re: Re:

    Yes it does...that is according to the US copyright office. If you did not create the work, you cannot make money off the work without permission from the creators of said work. You can do what ever you wish with it...even make it a meme...but if you make it a part of a money making scheme like a download center..you have to get it licensed. The tangible expression (which is a fancy word for meme..like "adhesive bandage strips" (what they are) being called BandAids (Johnson and Johnson's brand of adhesive bandage strips)) clause allows it to be freely recreated *but not re-branded* without permission as long as the newer creation does not make money.

    Uh, Wally, you're very confused. First of all, you're confusing trademark and copyright. Second, you're simply wrong about the law.

    Nasch is correct, and you are wrong.

     

    reply to this | link to this | view in thread ]

  41.  
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    Uriel-238 (profile), May 4th, 2013 @ 8:27pm

    That is how you kill a meme.

    1. Copyright, patent or trademark it.

    2. Enforce selfsame copyright, trademark or patent.

    Bam! dememefied.

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    SALLY, May 5th, 2013 @ 1:20am

    lol, the creator of "nyan cat" is Daniwell-P, a japanese composer, not some dude who simply added an animated gif along to the music.

     

    reply to this | link to this | view in thread ]

  43.  
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    nasch (profile), May 5th, 2013 @ 12:34pm

    Re:

    lol, the creator of "nyan cat" is Daniwell-P, a japanese composer, not some dude who simply added an animated gif along to the music.

    Without the animation, it isn't Nyan Cat.

     

    reply to this | link to this | view in thread ]


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