The opening paragraph of a new lawsuit against Warner Bros states: “Keyboard Cat and Nyan Cat are known and enjoyed by tens of millions of people”.  We imagine that readers of this blog will have one of three responses:

  1. I LOVE Nyan Cat and Keyboard Cat!  *sings song*;
  2. I HATE Nyan Cat and Keyboard Cat.  They are the most annoying memes out there.  I don’t know why anyone finds them funny; or
  3. What on earth are Nyan Cat and Keyboard Cat?

For those of you in category C, you can watch Nyan Cat at your pleasure here, and Keyboard Cat here.  Both are very famous YouTube videos.  Both have turned into internet memes.  Keyboard Cat is a video created by Charles Schmidt that features his cat “Fatso” a cat wearing a tshirt and appearing to play an electric keyboard.  Nyan Cat is a cartoon created by Christopher Orlando Torres of a cat’s face and a body resembling a breakfast bar that flies across the screen leaving a rainbow in its wake.

For those that are wondering what an internet meme is, Techopedia describes an internet meme as “an activity, concept, catchphrase or piece of media that gains popularity and spreads rapidly via the Internet”.  And when an internet meme spreads, it doesn’t just get spread by people watching the original.  Instead, internet users create their own versions, building on and using the meme.   A recent example is the Harlem Shake, where thousands of YouTube clips have been posted of people dancing to the same song in a similar style.  Those that spread memes are usually fans of the original.  (You can know your memes by looking here).

Internet memes come with a whole host of copyright issues.  A transformative use of a work may still be a copyright infringement in many countries (including Australia).  But there haven’t really been many cases on internet memes, perhaps because they usually bring the original creator lots of money.  (Nyan Cat has nearly 100 million views).

That is, not many cases until now.  So why is the owner of Nyan Cat and Keyboard Cat suing Warner Bros for copyright and trademark infringement?  Christopher Orlando Torres, the creator of Nyan Cat has explained why he sued Warner Bros, rather than the fans who have spread the meme.  He reportedly said that he is happy for millions of fans to use Nyan Cat as a meme and he has never tried to prevent people from making creative uses of Nyan Cat that contribute artistically.  But he has an issue with companies taking his work for free and making a profit from it.

So what is the copyright and trade mark case about?  Scribblenauts is a Warner Bros puzzle action video game for Nintendo DS that was released in 2009.  The player of the game can summon objects into the game.  These can include internet memes as Easter Eggs (another internet term to look up here).  The copyright in both the Nyan Cat animation and Keyboard Cat audio-visual work was registered by the creators in the United States in 2010.  Schmidt has an application pending for a Keyboard Cat trade mark. Torres has a trade mark for the image of Nyan Cat and another one pending for use in software.

Torres and Schmidt have said that they did not authorise the use of Nyan Cat and Keyboard Cat and have sued Warner Bros for the following:

  • copyright infringement;
  • false advertising (described as “the use of the Keyboard Cat and Nyan Cat mark would confuse and mislead the public and misrepresent and create the false impression that Scribblenaughts was approved, endorsed, sponsored, connected or affiliated with” the creators);
  • trademark infringement;
  • unfair competition (described as “unlawful, unfair and fraudulent business practices and misleading advertising”); and
  • account of profits from the sale and exploitation of Scribblenauts, emphasising wilful copyright and trademark infringement.

We don’t yet know what Warner Bros’ defence will be.  It would be quite interesting to see how the court considers internet memes, or if being a viral meme imports no different considerations at all.  It would certainly be an interesting case to be a fly on the wall.