Warner Bros. Sued By Meme Creators Over Copyright Infringement 210
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.' "
Well... (Score:5, Funny)
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Re:Well... (Score:4, Interesting)
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...
I can haz memes? (Score:5, Funny)
nyan cat is watching you litigate!
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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.
Re:I can haz memes? (Score:4, Insightful)
Fair Use.
Re:I can haz memes? (Score:5, Insightful)
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.
Purpose and character (Score:5, Informative)
they were actually making money off of someone else work without compensation.
Which is irrelevant in determining fair use.
How so? The first factor in a fair use determination under U.S. law (17 USC 107) involves whether or not the "purpose and character" was commercial.
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they were actually making money off of someone else work without compensation.
Which is irrelevant in determining fair use.
How so? The first factor in a fair use determination under U.S. law (17 USC 107) involves whether or not the "purpose and character" was commercial.
True, but fair use does not require any use not make money for the person claiming fair use; for example you can use a clip in a critique of the that is published in a for profit magazine.
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Fair Use.
You don't actually know what that means, do you?
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I think it's you.
No, it's not.
http://www.copyright.gov/fls/fl102.html [copyright.gov]
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Not true. The most obvious example is a parody of the original work.
Re:I can haz memes? (Score:5, Funny)
I think your tin foil hat is borken.
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What does setting a precedent have to do with it? The point was that a lawyer could act as a shill for a corporation, creating a class action suit in which the lawyer pretends to be working for the plaintiffs but is actually working for the corporation to eliminate the affected parties grounds to sue.
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That's ceiling cat, nyan cat just flies through space shitting rainbows.
A Taste of Your Own Medicine (Score:4, Insightful)
... How do you like them poptarts?
Re:A Taste of Your Own Medicine (Score:5, Funny)
Sincerely,
Kellogg Company Special Counsel for Intellectual Property Issues
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Cherry Poptart, an X-rated comic book, dropped the last name after the first issue.
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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
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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."
Re:And then BUY MORE (Score:3)
Sorry, the Buy More was a fictional store in the TV Series Chuck.
So you can't do that either. But you can Purchase More if you like!
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Damn you, KelCo SCIPI!
** shakes fist in nerd rage **
Re:A Taste of Your Own Medicine (Score:4, Interesting)
You joke... but Kellogg sued Image-Line over their use of "Fruity Loops" because "it confused customers." ... Image-Line makes audio production software.
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Not sure if it was actually _suing_, but you could've found it by grepping for "Kellogs" in Image-Line's wiki page, which links here [image-line.com]
Being nicer than you, I'll even give you a quote:
Kelloggs decided to challenge us when we applied for the FruityLoops trademark in the US. We had a very strong case AND we received the trademark in Europe as the two markets are obviously separated. But later they claimed to have released CDs and games in their cereal boxes, and as we didn't want to waste money fighting them in court for 5 years ...
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Re:A Taste of Your Own Medicine (Score:5, Interesting)
And since the other distinguishing characteristic is the name (and the soundtrack), ripped directly from a copyrighted Japanese pop song [answers.com], I think the creator of Nyan Cat owns significantly less than 25% of the thing.
Although I would never wish legal trouble on anyone, even a copyright troll, it would certainly tickle my sense of poetic justice for Christopher Torres to be served with papers from Kellogg's and whoever "daniwell" on Nico Nico Douga is [wikipedia.org].
Or maybe we just acknowledge that pop culture is a rich fertile humus best cared for by tilling and turning, rather than by boxing up and labeling.
Yes. It's cultural compost. People are arguing about who owns manure. Makes me proud to live in the 21st Century.
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a cat that is 75% Pop Tart
No, the cat is 75% frosted toaster pastry; Kellogg doesn't own rights to the appearance of frosted toaster pastries (note that you can find plenty of store-brand frosted toaster pastries, usually right next to PopTarts on the store shelf). If the Nyan Cat image actually contained the word "PopTart" (or was sold/marketed using the PopTart name) then Kellogg would have a case.
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What amazes me is that so many people have evidently shopped for their own groceries for years and never noticed that anyone besides Kelloggs makes toaster breakfast pastries. (At a guess, the alternative is they eat whatever Mom brings down to the basement). Worse, any such product has to have a shape that fits in a standard toaster, so for this product, shape and component placement aren't design choices or things distinctive about the Kelloggs product, they're natural constraints, as when a hot air ballo
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Damnit, so that's what I did wrong...
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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
The LOLCATS endgame. (Score:5, Funny)
Copyright of IDEAS is ridiculous (Score:4, Interesting)
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.
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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.
Comment removed (Score:5, Informative)
Re:Copyright of IDEAS is ridiculous (Score:5, Insightful)
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.
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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.
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because this is commercial use... that's why.
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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.
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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]
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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.
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According to them, they made repeated attempts to contact WB and 5th Cell, and got stonewalled.
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Bayer didn't lose it's trademark on Aspirin because it failed to defend it. It lost it as criminal punishment for that whole "participating in war crimes" thing back in WWI.
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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.
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A meme, by definition. is a public idea. Nobody "owns" it, even if a specific person originated it, because it's just an idea. You can trademark specific characters, but you can't trademark the ideas behind them. A cat playing a keyboard is an idea, and not a copyrightable or trademarkable notion.
You forget something, a meme can be made out of someone else trademark or copyright. A meme is when the public picks up on something and uses it alot. Like the Picard faceslap. That picture is used without permission from whomever owns Star Trek. Doesn't change that it has became a meme.
Also, when the public uses a meme, it's normally not used to make a profit.
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This trademark has absolutely not been protected until now against public OR commercial use.
Re:Copyright of IDEAS is ridiculous (Score:5, Informative)
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.
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Not everyone can agree with that, but I certainly do.
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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
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What's your plan to stop ALL murders?
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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
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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!!!!
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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
Copyrighted Memes... (Score:4, Insightful)
Madness must stop. (Score:2, Interesting)
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,
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Re:Madness must stop. (Score:5, Informative)
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.
Pretty sure Fatso the keyboard cat was simply posted on YouTube and the meme snowballed.
Re:Madness must stop. (Score:4, Informative)
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.
Seems reasonable to me (Score:5, Insightful)
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.
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Is this the same Warner Brothers that threatened children [wsws.org] over their Harry Potter fansites?
What is it the kids say these days? Oh, yes, Avada Kedavra.
Complete your sentences please (Score:2)
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?
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Pot, meet Kettle (Score:4, Insightful)
Doesn't Nyan cat use the image of a Pop Tart as the body of the cat?
Re:Pot, meet Kettle (Score:5, Informative)
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.
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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.
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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.
Nope (Score:2)
The wikipedia quote is "I was doing a donation drive for the Red Cross and in-between drawings in my Livestream video chat, two different people mentioned I should draw a “Pop Tart” and a “cat”.
Cut and paste dude.
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Actually, there's no problem if Torres admits to being 100% inspired by PopTarts. Again, Kellogg owns the *trademark* "PopTart," not rights to the shape, size, color, texture, or flavor of frosted toaster pastries. Torres is only in trouble if Kellogg can show he used their trademark (the "PopTart" name or logo) in a manner that risks confusing others into thinking his cat is a PopTart(R)-branded product. Note that competing store-brand frosted toaster pastry manufacturers get away with selling *actual boxe
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Right, and cola is usually refered to as "A Coke" in the SE USA. But Coca Cola still has to defend Coke when it appears publicly referring to any other product. If they don't they'll eventually lose the TM.
let me explain (Score:4, Insightful)
What's Grumpy Cat's take on this? (Score:2)
I eagerly await the answer...
Yeah yeah yeah... (Score:2)
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?
The second coming? (Score:4, Funny)
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.
Re:The second coming? (Score:5, Funny)
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Well done sir [photobucket.com]
Well done indeed [photobucket.com]
*wishes /. had inline images*
Re:Public Domain? (Score:4, Insightful)
"I was under the impression that once something becomes a meme, it is essentially public domain since it's extensive public use would forfeit any intellectual rights the creators may have had.
"
You don't seem to understand copyright at all then, sadly. Everything you just said is wrong. .
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It sounds like you're saying it should be actionable if one person steals your work, but if everyone steals your work, it shouldn't be.
IMO, Warner Bros is in a "live by the IP, die by the IP" place. If they took someone else's work and used it for commercial gain, I don't have a problem with the creator whacking them on the head for it. The foolproof defense, oh big companies who make your fortunes by creating characters, is just never to steal someone else's characters.
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Oh, good. let's start a Mickey Mouse meme, then.
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There already is one.
http://knowyourmeme.com/memes/suicide-mouse [knowyourmeme.com]
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I was under the impression that once something becomes a meme, it is essentially public domain
Just because you want it to be true doesn't make it so.
Legally, no it doesn't work that way at all.
Culturally, the only thing that any self-respecting netizen would advance as a meme isn't created by corporate influences or anyone that has the money or means to try and... you know... "own" a meme. As much as the PR department of Folgers Crystals would love to have their product become a meme, that shit just ain't happenin. But companies are certainly trying. I mean, that thing with the Old Spice guy is pret
The poor don't have rights... (Score:3)
It's just that the rich don't need to sleep under bridges, whereas the poor sometimes do. So laws against doing things that those without means must do (sleep outdoors, urinate in the park behind trees and shrubs, beg for money) are applied equally to those rich enoug
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