Charles Schmidt and Christopher Orlando Torres are both suing developer 5th Cell and publisher Warner Bros. for copyright infringement. The alleged infringement accuses 5th Cell and Warner Bros. of including Schmidt’s Keyboard Cat meme and Torres’ Nyan Cat meme in Scribblenauts. The first case of infringement stems back to the Scribblenauts entry in 2009. Since then, the cat memes of both people have been used by 5th and WB to promote Scribblenauts.
Keyboard Cat made its first Scribblenauts appearance in the 2009 Nintendo DS game and later in 2010’s Super Scribbblenauts, 2011’s Scribblenauts Remix and 2012’s Scribblenauts Unlimited. Nyan Cat was used in 2012’s Scribblenauts Unlimited. Both claim 5th Cell nor WB approached them for authorization to use the memes in the games, which they accuse the companies of “shamelessly” using their copyrighted material to promotional effect.
Keyboard Cat, also known as Fatso, Schmidt’s pet, wears a shirt and plays the keyboard, attracting over 30 million hits to its YouTube page. Schmidt registered a copyright for the video with the U.S. Copyright and has two pending trademark applications for “Keyboard Cat.” It’s commercial use extends to TV advertisements, such as for Starburst.
Nyan Cat is an animated cat sporting a pink frosting breakfast bar adorned with glitter for a body. The GIF animation was the 5th most watched video of YouTube in 2011 and won the 2012 Webby’s Meme of the Year award. Torres’ copyright was registered with the U.S. Copyright Office in 2011. A pending trademark application will register Nyan Cat with the U.S. Patent and Trademark Office.
Schmidt and Torres are suing for damages, and attorney’s fees, incurred by the copyright infringement. The first Scribblenauts game, however, was released in 2009, before Schmidt had registered his copyright, which was registered in 2010. Whether or not this entitles Schmidt to still pursue his lawsuit isn’t clear, but it looks as if Torres at least still has a case.
Image Courtesy. Chris Torres