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Nyan Cat and Keyboard Cat creators sue 'Scribblenauts' studio for using their memes

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When does a remix become a ripoff?

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The owners of two of the internet's best-known cat memes are striking back at Scribblenauts for using them without permission. Charles Schmidt and Christopher Orlando Torres have sued Warner Brothers for copyright and trademark infringement, based on images of Nyan Cat (created by Torres) and Keyboard Cat (created by Schmidt) that appear in the game. After both cats achieved fame years ago, Torres and Schmidt have parlayed them into an ongoing career under the management of "meme agent" Ben Lashes. Since then, they've had to confront the strange tension that comes from trying to own and license something that grew through sharing and appropriation.

"The 'WB' logo also is a meme, even though it is only two letters."

The issue in question is a pair of Scribblenauts Easter eggs showing the two cats. In several Scribblenauts games, typing "Keyboard Cat" will call up an image of a cat in a blue shirt with a keyboard, while typing "Nyan Cat" in the 2012 title Scribblenauts Unlimited will bring up the familiar gray cat with a Pop-Tart body. Both memes have registered copyrights, with trademark applications pending, something that Schmidt and Torres argue makes using them in Scribblenauts no different to ripping off a Warner Brothers character for another game. "The 'WB' logo also is a meme," a court filing reads, "even though it is only two letters inside the outline of a shield. Of course, WB employs an army of lawyers who use trademark and copyright law to zealously protect its intellectual property."

Outside the claim of copyright infringement from using Nyan Cat and Keyboard Cat's likenesses without authorization, the two also allege that Warner Brothers created a misleading relationship between Scribblenauts and their memes, whose earning potential comes from commercial appearances and branded merchandise. Nyan Cat has even had its own pop-up store. To compensate, Schmidt and Torres are asking for unspecified damages and court costs.

Both men make a fairly strong case for Warner Brothers' having misappropriated their memes. Nyan Cat's distinctive image and name in particular were used without permission, while Keyboard Cat can also be reasonably seen as a copy (though the image and name are slightly more generic.) This also isn't the first such lawsuit. In 2011, Schmidt sued Threadless over a "Three Keyboard Cat Moon" shirt; the case ended up being settled. Lashes has compared his defense of memes to Disney's fierce enforcement of its trademarks: "If it's not something you can do to Mickey Mouse then it's not something you can do to Keyboard Playing Cat, or Nyan Cat, or anybody that I represent," he said earlier this year.

"If it's not something you can do to Mickey Mouse then it's not something you can do to Keyboard Playing Cat, or Nyan Cat."

Outside the legal ramifications, the underlying cultural problem is where to draw the line between a remix and a ripoff. Both Keyboard Cat and Nyan Cat flourished in large part because they were endlessly mutable: people built their own alternate Nyan Cats or spliced Keyboard Cat into videos to "play them off," drawing attention to the original. As we noted at ROFLCon, though, this same freedom means that massive cultural symbols often bring little to their creators: "The problem with this model is not that the subjects of our internet culture aren't profiting enough off of them: it's that literally everyone else is."

Unlike a Nyan Cat scarf or a Keyboard Cat phone cover, Scribblenauts isn't exactly promoting itself with memes. It's a game known for incorporating virtually every item in existence: if you can write it, you're supposed to be able to conjure it. Along with Nyan Cat and Keyboard Cat, you'll find Ninja Cat, Longcat, Spaghetti Cat, and a whole list of others. We've come to expect such reference-dense entertainment — open up the recently released Guacamelee and you'll find reimaginings of Grumpy Cat or Strong Bad. But at some point, these references can end up in a legal and ethical morass.

Update: Schmidt and Torres have posted on Pastebin, detailing their interactions with Warner Brothers. "We reached out to the companies in hopes of working out an amicable resolution of the issue," they write, "yet were disrespected and snubbed each time as nothing more than nuisances for asking for fair compensation for our intellectual property."

"I have never tried to prevent people from making creative uses of it that contribute artistically and are not for profit."

Torres stresses the distinction between commercial and noncommercial use: "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." He also points out the discrepancy between how meme characters are treated compared to those from older media.

"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," he writes, "especially considering too that they would be the first to file lawsuits against people who misappropriate their copyrights and trademarks."