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
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.
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Filed Under: charles schmidt, copyright, keyboard cat, nyan cat, orlando torres, scribblenauts, trademark
Companies: warner bros
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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?
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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.
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Try the fish, Leigh will be hear all week!
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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.
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Memes and Cats
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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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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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But surely..
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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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
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Actually, WB should pay the public through high taxes.
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Re: Actually, WB should pay the public through high taxes.
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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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Shouldn't that be "WB" or did the picture of the shield get cut off somehow?or did I miss something??
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The obvious solution...
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Link failure
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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.
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Strike first
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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 !
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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.
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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.)?
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That is not what copyright says.
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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.
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"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.
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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.
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That is how you kill a meme.
2. Enforce selfsame copyright, trademark or patent.
Bam! dememefied.
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Without the animation, it isn't Nyan Cat.
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