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May 03, 2013

Internet Memes Fight Big Media: Nyan Cat, Keyboard Cat Slap Warner Bros. with Lawsuit

By Tara Seals, TMCnet Contributor

Warner Bros.’ popular Scribblenauts video game is under the microscope for being a little too free with its pop culture sensibilities: A copyright and trademark infringement lawsuit has been filed against Warner Bros. and its partner 5th Cell Media by attorneys for co-opting two viral Internet memes: Keyboard Cat and Nyan Cat.

Attorneys for Charles Schmidt – creator of the Keyboard Cat meme – and Christopher Orlando Torres – creator of Nyan Cat meme—filed the suit, as noted in the IP Trademark Attorney blog.

Keyboard Cat features “Schmidt’s cat, Fatso, wearing a shirt and playing an electronic keyboard with its paws,” the blog noted. It’s reached 30 million YouTube (News - Alert) hits. Nyan Cat is an animated cat with a rainbow streaming out behind it, which was the fifth most-watched video on YouTube in 2011, and winner of the 2012 Webbys “Meme of the Year” award.

The plaintiffs accuse Warner Bros. and 5th Cell of lifting the memes for use in the game: Keyboard Cat in the original 2009 Scribblenauts release, 2010’s Super Scribblenauts and 2011’s Scribblenauts Remix, and both of them in last year’s Scribblenauts Unlimited. The problem, say the meme-owners, is trademark infringement.

Keyboard Cat is copyrighted and has two pending trademark applications for the term “Keyboard Cat.” It’s already been licensed, most notably for a national Starburst candy television commercial.

Torres also registered Nyan Cat with the copyright office, and has filed a trademark application to register the “Nyan Cat” word mark with the US Patent & Trademark Office.

The two are seeking triple damages and “reasonable attorneys’ fees” for what they say is “shameless” use of their creations for profit and marketing purposes.

IP attorney Milord A. Keshishian in the blog notes that Nyan Cat first appeared in Scribblenauts Unlimited in 2012, a year after Nyan Cat's copyright registration date. Thus, Nyan Cat is entitled to “statutory damages, enhancement thereof, and attorneys' fees and costs.”

Keyboard Cat is a different story, the lawyer said: “Defendants are accused of infringing both copyrights in their initial 2009 release of the video games [but Keyboard Cat wasn’t] registered until 2010. Thus, [the plaintiff is not] entitled to statutory damages or attorney’s fees, a prerequisite of which – per 17 U.S.C. § 412 – is either registration before (1) commencement of any infringement or (2) within three months after the first publication of the copyrighted work.”

“Further, the Keyboard Cat video was published over five years before the application to register the copyright was filed, thus it is not entitled to a presumption of validity afforded by 17 U.S.C. § 410(c),” he said.

The case is being handled in California.

Edited by Stefania Viscusi
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