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Warner Bros. Sued By Meme Creators Over Copyright Infringement 210

Posted by Soulskill
from the second-generation-internet-entertainment dept.
Krazy Kanuck sends this quote from the BBC: "Warner Bros is being sued for the alleged unauthorized use of two cats that have achieved internet fame. ... The complaint alleged that the cats were used without permission in Scribblenauts, a series of games on the Nintendo DS and other platforms. Court documents alleged that Warner Bros and 5th Cell 'knowingly and intentionally infringed' both claimant's ownership rights. 'Compounding their infringements,' court papers (PDF) said, 'defendants have used "Nyan Cat" (designed by Christopher Torres) and "Keyboard Cat" (created in 1984 by Charles Schmidt), even identifying them by name, to promote and market their games, all without plaintiffs' permission and without any compensation to plaintiffs.' "
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Warner Bros. Sued By Meme Creators Over Copyright Infringement

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  • Well... (Score:5, Funny)

    by Sigvatr (1207234) on Friday May 03, 2013 @01:52PM (#43622301)
    That escalated quickly.
    • by Hsien-Ko (1090623)
      I just hope this doesn't become some sort of sue-bait kind of thing. Memes can't have enough room to fit in a copyright disclaimer.
    • Re:Well... (Score:4, Interesting)

      by Anonymous Coward on Friday May 03, 2013 @05:56PM (#43624717)

      Let us all watch and see how the MPAA/RIAA mafia wear their own regulations when thrown back at them, legitimately. ...installs self in couch, orders large supply of chips and sodas...

  • by femtobyte (710429) on Friday May 03, 2013 @01:53PM (#43622323)

    nyan cat is watching you litigate!

    • hmm lots of pictures from popular movies shows and other corporate owned works are made into memes i wonder if this caes could be used by them as precedent to shutdown web sites like 4chan which live of of people posting memes.

      • by Anonymous Coward on Friday May 03, 2013 @02:09PM (#43622521)

        Fair Use.

        • by Anonymous Coward on Friday May 03, 2013 @02:21PM (#43622667)

          Yeah, I think it's not that it's being used, per se. That happens all the time and people do these and share them for fun. What happened here is that it slapped onto a product that was sold for profit without the original creators permission. In other words, they were actually making money off of someone else work without compensation.

        • by ScentCone (795499)

          Fair Use.

          You don't actually know what that means, do you?

        • by PhxBlue (562201)
          Fair use does not apply to derivative works made for profit.
      • by msauve (701917) on Friday May 03, 2013 @02:15PM (#43622597)
        So, you're saying that WB infringed the memes, knowing they'd be sued, just so they could lose the case and set a precedent which they could then turn around and use against 4chan?

        I think your tin foil hat is borken.
        • I look forward to seeing 4chan's for-profit commercial offerings.
    • That's ceiling cat, nyan cat just flies through space shitting rainbows.

  • by Anonymous Coward on Friday May 03, 2013 @01:56PM (#43622363)

    ... How do you like them poptarts?

    • by langelgjm (860756) on Friday May 03, 2013 @02:28PM (#43622739) Journal
      That's Pop-Tarts®. You'll be hearing from our lawyers shortly.

      Sincerely,

      Kellogg Company Special Counsel for Intellectual Property Issues
      • Re: (Score:3, Insightful)

        Cherry Poptart, an X-rated comic book, dropped the last name after the first issue.

      • Actually, they won't. The complaint gives a very humorous and TM-free description of Nyan Cat:

        NyanCat, a character with a cat's face and a body resembling a horizontal breakfast bar with pink frosting sprinkled with light red dots

        • by idontgno (624372)

          You could hear the discomfort and almost see the cringing as the author of TFS carefully tiptoed around the IP minefield.

          Seriously. Whiskey. Tango. Foxtrot. We are becoming afraid to speak, create, express ourselves... not because of Big Brother or the New World Order (or even the Illuminati), but because of the Intellectual Property criminal syndicate.

          They own the words. They own the pictures. They own the ideas, FFS. What are we left with? "Shut up and consume your media, Consumer! And then BUY MORE."

      • Damn you, KelCo SCIPI!

        ** shakes fist in nerd rage **

      • by X0563511 (793323) on Friday May 03, 2013 @04:02PM (#43623567) Homepage Journal

        You joke... but Kellogg sued Image-Line over their use of "Fruity Loops" because "it confused customers." ... Image-Line makes audio production software.

      • by dfm3 (830843)
        No, that's, "horizontal breakfast bar"
    • Name of the cat is not pop tart cat. So trademark is not a problem. You can't copyright food. So copyright isn't a problem.
    • by steelfood (895457)

      I don't know if you're just not familiar with the legal on-goings in Hollywood, but big movie studios get sued for copyright infringement all the time. All the time.

      This is because every Tom, Dick, and Harry has an idea, and every movie that's even remotely similar to this brilliant idea of their's will cause them to sue. Now, that doesn't mean these aren't always legitimate lawsuits. Many times, the studios will take something someone pitched, and turn it into a movie, without compensating the originator o

  • by GodInHell (258915) on Friday May 03, 2013 @01:56PM (#43622369) Homepage
    Well -- we all knew they were up to something -- now we now it really was world domination, just not the way we all expected.
  • by SmokeSerpent (106200) <benjamin&psnw,com> on Friday May 03, 2013 @01:56PM (#43622373) Homepage

    Can we all just agree that idea of "copyrighting" characters is ridiculous? Trademark is one thing, but characters created without trademark should be considered travelers within the realm of culture, IMO. Actual direct digital copying of DRAWINGS of said characters, of course, falls under copyright.

    • Re: (Score:3, Insightful)

      by mark-t (151149)

      This.

      If the creators really wanted to protect their creations from such use, they should have trademarked them.

      Of course, trademarked stuff can't really become a meme in the first place, since the trademark must be actively defended at all times. And not becoming a meme would have meant it probably wouldn't have been found in allegedly "unauthorized" works anyways.

      • by Jafafa Hots (580169) on Friday May 03, 2013 @02:16PM (#43622621) Homepage Journal

        From the article:
        "Both Mr Torres and Mr Schmidt own copyrights and trademarks of the characters."

        • by mark-t (151149) <markt@@@lynx...bc...ca> on Friday May 03, 2013 @02:23PM (#43622685) Journal

          Then why were those trademarks not defended when they started being publicly used without authorization in the first place? There is an abundance of historical precedent that if you fail to defend your trademarks, you lose them.

          Of course, if they had defended them in the first place, then by very definition of what a meme is, they never would have become one.

          • I don't know how you got up modded for implying it is possible to put a stop to an internet meme. Especially considering the Streisand effect.
          • Because only Scribblenauts Unlimited, which just came out a few months ago, uses Nyan Cat - presumably Torres was the instigator of this action, and is just bringing Keyboard Cat along for the ride.

          • by gl4ss (559668)

            because this is commercial use... that's why.

            • by mark-t (151149)
              That excuse didn't seem to work for Bayer losing the Aspirin trademark.
              • by ScentCone (795499)

                That excuse didn't seem to work for Bayer losing the Aspirin trademark.

                You keep saying that, but you really don't know the first thing about it, do you? No, you don't.

              • By 1899, Bayer's trademark Aspirin was registered worldwide for Bayer's brand of acetylsalicylic acid, but because of the confiscation of Bayer's US assets and trademarks during World War I by the United States – and the subsequent widespread usage of the word to describe all brands of the compound —, "Aspirin" lost its trademark status in the United States, France, and the United Kingdom. It is now widely used in the US, UK, and France for all brands of the drug. However in over 80 other countries, such as Canada, Mexico, Germany, and Switzerland, it is still a registered trademark of Bayer.

                http://en.wikipedia.org/wiki/Bayer [wikipedia.org]

                • by mark-t (151149)
                  Exactly. Bayer tried to defend against commercial use, but was unable to do during World War 1 because their assets were taken for the duration of the war. By the time they were able to respond, it was too late, and they would eventually lose the trademark completely.
                • by steveg (55825)

                  Ahem!

                  You're citing Wikipedia? As evidence?

                  I tell my students that they should definitely take a look at what Wikipedia says. It sometimes has good information, and can be a great jumping off point for further research.

                  I also tell them that they'll lose points if they actually cite it directly, since you cannot depend on its information. Wikipedia is not evidence, it's just background for further research.

            • everything is commercial use in some form nowadays.. everything.
          • by _Ludwig (86077)

            According to them, they made repeated attempts to contact WB and 5th Cell, and got stonewalled.

      • by lgw (121541)

        Of course, trademarked stuff can't really become a meme in the first place

        <----
        If this were an image board, there'd be a picture of Spiderman here, in some humorous pose.
        <----

        This is now a spiderman thread.

      • by Zordak (123132)
        The guy made an animation of a Pop Tart cat flying through space on a rainbow. That drawing is copyrighted. If Nintendo made derivative works of that drawing, then it's copyright infringement. What's so hard?
    • by Hsien-Ko (1090623) on Friday May 03, 2013 @02:02PM (#43622439)
      I've seen those two particular "memes" on the Playstation Store as dynamic themes in a recent April 2013 update, "officially licensed", for $3 each.

      So yep.
      . Who knows what would happen to the Steam Workshop for Scribblenauts Unlimited now, as it's 99% encumbered by facsimilies of real registered trademarks, created by players.
    • Re: (Score:3, Insightful)

      by briancox2 (2417470)
      Can we all just agree that carrying forward the ancient concept of copyright is ridiculous in a world where it cannot be enforeced without draconian measures?
      • Not everyone can agree with that, but I certainly do.

      • by mark-t (151149)
        Only if you consider an alternative of self-censorship to qualify as a non-draconian measure.
      • by ScentCone (795499)

        Can we all just agree that carrying forward the ancient concept of copyright is ridiculous in a world where it cannot be enforeced without draconian measures?

        What's Draconian about a cease and desist letter? It takes minutes to write one, and it takes the people ripping off someone else's work to further their own commercial activities minutes to take down the ripped-off material. It takes them even less time to decide not to rip stuff off in the first place. Hey, look! Nothing draconian involved.

        Oh, you mean the draconian measures required when someone has had it pointed out to them that they're ripping off someone's work to avoid paying for the marketing m

    • Re: (Score:3, Informative)

      by Chris Dodd (1868704)
      Which is why they're sueing for TRADEMARK infringement. The fact that slashdot gets things totally wrong in the headline is besides the point
    • Yep, absolutely ludicrous, but if someone started using the idea of Bug Bunny and was making a buck, then Warner Bros. would unleash the lawyers and leap down your throat. It's important that the big boys have to play by the same rules as the little guys, even if the rules are bullshit.

      You know, cause we kinda expect this system to try and be fair.

      Trademark is one thing, but characters created without trademark should be considered travelers within the realm of culture, IMO

      Warner Bros is a trademark. They've marked their trade with a logo. Bugs Bunny is a character. Content. The idea of a funny cartoon rabbit does not identify some

      • by sconeu (64226)

        It's important that the big boys have to play by the same rules as the little guys, even if the rules are bullshit.

        Isn't he so cute? They're so precious when they're naive like that!!!!

    • By allowing only trademark you will give a strong incentive to creative guys not to share. Worst idea ever.

      Anyway you're derailing.
      A media company caught violating copyright under current law should be fined a lot more than all the others. Not because they're more or less evil. Because

      1. they know these laws better than anybody, they might have even paid for them.
      2. they bother LEGITIMATE PAYING CUSTOMERS with their hubbub about piracy at the beginning of DVD, games, ads... and then, they proceed to take ad

  • by idontgno (624372) on Friday May 03, 2013 @01:59PM (#43622391) Journal
    are the submarine patents of culture.
  • Madness must stop. (Score:2, Interesting)

    by Anonymous Coward

    I don't want to defend Warner Brothers, but this suit is stupid. These characters are totally pervasive on the Internet - de-facto public domain, so to say. They're also quite old. Extremely few of the people who use them have a clue that they're copyrighted.

    If you create a meme and plaster it all over the Internet, you can't expect to keep people from using it, for profit or otherwise. That's just beyond ridiculous. If the creators of Hello Kitty were to sue every small clothing maker who used images,

    • Re: (Score:3, Interesting)

      How is Hello Kitty different than Mickey Mouse?
    • by operagost (62405) on Friday May 03, 2013 @02:24PM (#43622695) Homepage Journal

      de-facto public domain

      No, in fact, they're not public domain. Declaring them public domain based on their pervasiveness would mean that Mickey Mouse is also public domain-- and we all know that isn't true.

      If you create a meme and plaster it all over the Internet, you can't expect to keep people from using it, for profit or otherwise

      Pretty sure Fatso the keyboard cat was simply posted on YouTube and the meme snowballed.

      • by Anonymous Coward on Friday May 03, 2013 @02:40PM (#43622839)

        I think you should consider a key difference here: not only is Warner Bros. using the work to make profit on the game but they are also using these images to promote the game. There is a huge difference between some kid posting Nyan cat on 4chan for the billionth time and Warner Bros. using Nyan cat for marketing. That random kid on 4chan isn't making a profit from it. It's not part of his business model.

        It's perfectly reasonable for the creator of Nyan cat to say "I don't mind it when random people (even if it is a lot of random people) post Nyan cat on imageboards just to have a laugh but I don't want a global corporation to use my image to make money without my permission".

        That's how copyright works and to a certain degree that's perfectly reasonable. You shouldn't be expected to litigate against every single person who ever uses your image withot your permission. That is going to be way too onerous for something like Nyan cat. The Nyan cat creator would go bankrupt trying to sue the internet. It does make sense, however, to target a huge corporation who really should know better.

  • by ilsaloving (1534307) on Friday May 03, 2013 @02:02PM (#43622453)

    These media conglomerates salivate in their sleep while dreaming of litigating the crap out of anyone they can get away with so that they can maintain a stranglehold on culture.

    I am totally in favor of culture biting them in the ass, using the very laws they weas^H^H^H^Hchampioned.

  • Court documents alleged that Warner Bros and 5th Cell 'knowingly and intentionally infringed' both claimant's ownership rights.

    They infringed both claimant's ownership rights and what else?

  • Pot, meet Kettle (Score:4, Insightful)

    by redshirt (95023) on Friday May 03, 2013 @02:06PM (#43622485)

    Doesn't Nyan cat use the image of a Pop Tart as the body of the cat?

    • Re:Pot, meet Kettle (Score:5, Informative)

      by femtobyte (710429) on Friday May 03, 2013 @02:10PM (#43622527)

      Frosted breakfast toaster pastries aren't an exclusively owned intellectual property. Nyan Cat doesn't have a "Pop Tart (tm)" label on the image; just an image of a food (?) product of which many generic variants are available.

      • Re: (Score:2, Funny)

        by Anonymous Coward

        Frosted breakfast toaster pastries aren't an exclusively owned intellectual property

        I know this all too well, and still suffer the scars of my youth; that one time when my mom brought home "Toaster Pastries" instead of Pop Tarts.

      • by Molochi (555357)

        FWIW, Its creator is quoted as saying it's a Pop Tart in its Wikipedia article. Part of having a Trademark is the responsibility of defending it against unauthorized use. If you don't defend it you lose it. So, Kelloggs will probably sue him at some point and he will then say it's not a Pop Tart.

        Meh.

  • let me explain (Score:4, Insightful)

    by frovingslosh (582462) on Friday May 03, 2013 @02:15PM (#43622599)
    Clearly the creators are confused. When big media takes something and uses it, that is just fine and everyone should look the other way. But if they (the big media maffia) even accuse anyone of taking something of theirs (or even that they would like to be theirs but really isn't) then that person is guilty and owes them irrational amounts of compensation.
  • I eagerly await the answer...

  • Toss the "stick it to the man," "taste your own medicine" rubbish aside...

    $1000 says WB wins, considering the justice system is rigged to favor the party with the most money.

    Come on, who are we trying to fool here?

  • by coldsalmon (946941) on Friday May 03, 2013 @02:36PM (#43622791)

    Turning and turning in the widening gyre
    The falcon cannot hear the falconer;
    Things fall apart; the centre cannot hold;
    Mere anarchy is loosed upon the world,
    The blood-dimmed tide is loosed, and everywhere
    The ceremony of innocence is drowned;
    The best lack all conviction, while the worst
    Are full of passionate intensity.

    Surely some revelation is at hand;
    Surely the Second Coming is at hand.
    The Second Coming! Hardly are those words out
    When a vast image out of Spiritus Mundi
    Troubles my sight: somewhere in sands of the desert
    a character with a cat's face and a body
    resembling a horizontal breakfast bar
    with pink frosting sprinkled with light red dots,
    flies across the screen, leaving a stream
    of exhaust in the form of a bright rainbow
    in its wake, while all about it
    Reel shadows of the indignant desert birds.
    The darkness drops again; but now I know
    That twenty centuries of stony sleep
    Were vexed to nightmare by a rocking cradle,
    And what rough beast, its hour come round at last,
    Slouches towards Bethlehem to be born.

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