Attorneys filed the claim on behalf of creators Charles Schmidt and Christopher Orlando Torres roughly nine days ago. Schmidt’s 1984 footage of a cat (“Fatso”) playing a MIDI keyboard became a viral hit when it was first uploaded to YouTube in 2007, while Torres’ flying cat .GIF first found fame in 2011.
It is claimed that the 5th Cell-developed Scribblenauts franchise has exploited the memes for market promotion. A cut-out from the claim reads:
“For the past three years, WB, along with game developer 5th [Cell] knowingly and intentionally infringed plaintiffs’ copyrights and trademarks by using ‘Nyan Cat’ and Fatso’s image in WB’s top selling ‘Scribblenauts’ games, including, most recently, ‘Scribblenauts Unlimited,’ which WB released in 2011. Compounding their infringements, defendants have used ‘Nyan Cat’ and ‘Keyboard Cat,’ even identifying them by name, to promote and market their games, all without plaintiffs’ permission and without any compensation to plaintiffs. Hence the instant action.”
It’s not difficult to cry foul of the claim, as it seems unlikely that you can copyright a meme, which is a particular definition of an idea passed from person to person. You can, however, copyright a character or intellectual property. Both Keyboard Cat and Nyan Cat are registered at the US Copyright Office.
Fans of the Scribblenauts franchise today pointed to fair-use under parody as a natural defense for Warner Bros. and 5th Cell, as the avatars of both Keyboard Cat and Nyan Cat appear in the game as cartoon-ish interpretations.
For those interested in the legal specifics, a .PDF of the original complaint is available here. A more extensive break-down of the faults and merits of the claim can found at the Milard & Associates Intellectual Property blog.