Nyan and Keyboard Cat Creators Going to the Mattresses

Posted on May 6, 2013 8:45 AM by Brandon Mietzner

Anyone who has been on the Internet has seen a meme in one form or another, which is described as “an idea, behavior, style, or usage that spreads from person to person within a culture.” This is generally done in a humorous fashion through puns, pictures, animation, music and etc. There are few memes that have become a phenomenon unto themselves such as Nyan Cat, created by Orlando Tores and Keyboard Cat, created by Charles Schmidt.

Nyan and Keyboard Cat in SNU

These memes were recently incorporated into a game called Scribblenauts Unlimited, one that allows the player to type in a name, see that name on their screen, and then an item can appear that can be used to solve puzzles. However, copyrighted material should not appear when typed in, like these. A new lawsuit against game developer 5th Cell and publisher Warner Brother Games was filed by Milord & Associates PC representing both creators. The law firm gave this statement as part of its press release: “Defendants are accused of shamelessly using “Nyan Cat” and “Keyboard Cat” by name to promote and market their games. Plaintiffs claim that Warner Bros and 5th Cell’s trademark infringement was willful and intentional and are requesting an award of treble damages and requesting the case be deemed exceptional under 15 U.S.C. § 1117(a), thereby entitling Plaintiffs to an award of reasonable attorneys’ fees.”

Orlando Tores made this comment on his personal Tumblr account a few days after the lawsuit was filed: “We reached out to the companies in hopes of working out an amicable resolution of the issue, yet were disrespected and snubbed each time as nothing more than nuisances for asking for fair compensation for our intellectual property.  That’s not right.  I have no issues with Nyan Cat being enjoyed by millions of fans as a meme, and I have never tried to prevent people from making creative uses of it that contribute artistically and are not for profit.  But this is a commercial use, and these companies themselves are protectors of their own intellectual property.”

Warner Brothers is a known supporter of copyright bills such as SOPA and PIPA, and has admitted to a federal court that it sent out bogus take-down notices to HotFile. I am just beside myself to understand why a company who supports copyrighted work is not willing to support works that are lawfully copyrighted. This is either a case of the left hand not knowing what the right hand is doing or the company only cares about covering its own assets on the Internet. I sincerely hope this story of David vs Goliath ends well for the two Davids in this story and they aren’t squished under the heel of Goliath.

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