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.

Filed Under: charles schmidt, copyright, keyboard cat, nyan cat, orlando torres, scribblenauts, trademark
Companies: warner bros