Update: Creator of the "Nyan Cat" meme Christopher Orlando Torres explained to us that the lawsuit had been misreported in the media and that "Nyan Cat" was copyrighted in 2011 while Scribblenauts Unlimited wasn't released until 2012. He didn't know about the series' use of the meme until it appeared in the debut trailer for the its latest installment:
Torres then issued the following statement:
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. Many other companies have licensed Nyan Cat properly to use commercially. In Scribblenauts Unlimited, you have to actually type out the words "Nyan Cat" and "Keyboard Cat" to get our characters to appear in the game. In fact, the game forbids you from making any copyright references in their games with a pop-up error. Meanwhile, 5th Cell recently negotiated proper rights for several Nintendo characters for their games. Just because popularity with millions of fans has caused Nyan Cat and Keyboard Cat to become famous by virtue of their viral or meme nature, doesn't give these companies a right to take our work for free in order to make profits for themselves, especially considering too that they would be the first to file lawsuits against people who misappropriate their copyrights and trademarks. It just isnt fair. I've been working alongside with the creator of the music and the lady who uploaded it to YouTube since the start. There are many reputable companies that have respected our rights and negotiated fees to use our characters commercially. Warner Bros. and 5th Cell should have done the same.
Since Warner Bros. and 5th Cell chose to act as if we had no rights in characters we created, filing a lawsuit was the only way we had to protect our intellectual property rights from being used for others' commercial profit without our consent. Too often normal artists like us don't have the means and resources to protect our rights against big media corporations who use our work for their own profit without permission. We are looking here just to be treated fairly and to be fairly compensated for our creative work.
Original story: Scribblenauts developer 5th Cell and publisher Warner Bros. are being sued by the creators of internet memes Keyboard Cat and Nyan Cat.
Animated versions of the two feline phenomenons are included as Easter eggs in the original 2009 Scribblenauts game, its 2010 sequel Super Scribblenauts, iOS version Scribblenauts Remix, and the series most recent entry, Scribblenauts Unlimited.
Charles Schmidt, creator of the YouTube hit Keyboard Cat (real name Fatso), and Christopher Orlando Torres, creator of the Nyan Cat animated GIF, have both filed for copyright and trademark infringement.
"For the past three years, WB, along with game developer 5th, have knowingly and intentionally infringed plaintiffs' copyrights and trademarks by using 'Nyan Cat' and Fatso's image in WB's top selling 'Scribblenauts' games," the complaint reads. "Including, most recently, 'Scribblenauts Unlimited', which WB released in 2011."
Both plaintiffs allege that their creations were used without license or authorisation, in order to "promote and market" the games, the Los Angeles IP trademark blog reports.
The pair are seeking an unspecified amount of damages to cover their claim and pay their attorneys' fees.
Neither meme was trademarked until 2010, a year after the first Scribblenauts game was released - something which the LA law blog flags will count against the pair's claims. The footage of Keyboard Cat dates back to 1984, for example, although only found internet fame in 2009.
Scribblenauts is known to feature numerous references to internet jokes and pop culture. Typing "Rickroll", "Giant Enemy Crab" and "Dramatic Chipmunk" all generate references to their various memes, for example, as do the names of fellow famous felines Monorail Cat and longcat.
We've asked Warner Bros. for comment.