Jimquisition: Lawsuits, Memes, and Tasty Medicine

Jimothy Sterling

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Lawsuits, Memes, and Tasty Medicine

Warner Bros. and 5th Cell are facing a lawsuit over the inclusion of Keyboard Cat and Nyan Cat in Scribblenauts. Preposterous, you say? Greedy, are the meme makers? I say well done them!

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Jimothy Sterling

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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
According to the creators, the legal blog that initially reported this suit got all the dates wrong.
 

orangeapples

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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
I think this is about Scribblenauts Unlimited which is after the copyright... Apparently Nyan Cat was copyritten in 2011 which is before the WiiU.
 

Chessrook44

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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
This reminds me of another semi-famous instance that was similar. Bill Waterson was the creator and owner of Calvin and Hobbes, and was against doing any sort of merchandising aside from one or two calendars and a few collection books. Well some people made those Calvin Peeing stickers you occasionally see on truck windows or the like. Bill copyrighted Calvin and Hobbes, but by then, it was too late. The judge ruled against him, saying that "Well you should have copyrighted sooner." And that's kinda what's happening here. WB used the images, the cat owners copyrighted them after, and most likely a judge will say "Well, you're kinda too late here."

This is compared to when WB has videos copyrighted, and then goes after people who post that copyrighted material after it was copyrighted. Unfortunately, it seems like WB might end up on top here, and they'll just have a big grin on their face that they got away with it.

"Don't steal everything from the internet. Just steal what hasn't been copyrighted yet. They can't prosecute us for that."
 

1337mokro

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I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.

True it's fun to see Warner Bros get a taste of it's own medicine, but this would be even worse if the Nyan cat and Keyboard cat people win. I seem to remember Batman showing up in one of your episodes, be that in clip or in costume. That would then have a legal precedent to get your ass sued off, after all I presume the escapist is paying you, what they pay you with is not really important but you are making a profit whilst using trademarked or copyrighted images in your work. This would eventually not harm WB but the creators, in this case 5th Cell and yes even you.

In the case of a Nyan cat or Keyboard victory it will result in a possibly worse version of copyright law. It's basically the Russian way of winning a war, by clogging the gears of your enemy with your own dead.
 

ninjaRiv

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To be honest, my gut reaction was never "boo, you greedy buggers" it was "good for you" simply because I thought it was about time a big shot like WB got a taste of their own medicine. I'm in total support of people protecting their creations, demanding compensation, etc but not to the point where it hurts anyone. I kind of like the "use it however you like as long as you give full credit and don't make a profit on it" thing. That seems fair to me.
 

Jimothy Sterling

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1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.

True it's fun to see Warner Bros get a taste of it's own medicine, but this would be even worse if the Nyan cat and Keyboard cat people win. I seem to remember Batman showing up in one of your episodes, be that in clip or in costume. That would then have a legal precedent to get your ass sued off, after all I presume the escapist is paying you, what they pay you with is not really important but you are making a profit whilst using trademarked or copyrighted images in your work. This would eventually not harm WB but the creators, in this case 5th Cell and yes even you.

In the case of a Nyan cat or Keyboard victory it will result in a possibly worse version of copyright law. It's basically the Russian way of winning a war, by clogging the gears of your enemy with your own dead.
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.
 

shrekfan246

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Machine Man 1992 said:
First, beyotch!
I hope the warning you're going to get was worth it.

OT: I didn't hear about the Scribblenauts thing.

My stance on the subject is that if the NyanCat and KeyboardCat guys tried contacting them to sort it all out and were subsequently ignored, Warner Bros. deserves whatever they get out of all this.

[sub][sub]What? I'm totally not still bitter about WB shutting down that free Middle Earth total conversion mod for Skyrim...[/sub][/sub]
 

Simon Leonhart

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I haven't watched the Jimquisition in a very long time, but I'm really glad I tuned into this episode. I think that Jim brings up some very good points, especially where he outlines that there is truly a difference between the copyright holders of Nyan Cat and Keyboard Cat coming from a very different place on this than a multinational corporation like the WB does when it demands blood for any perceived copyright infringement.
 

Another

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Chessrook44 said:
DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
This reminds me of another semi-famous instance that was similar. Bill Waterson was the creator and owner of Calvin and Hobbes, and was against doing any sort of merchandising aside from one or two calendars and a few collection books. Well some people made those Calvin Peeing stickers you occasionally see on truck windows or the like. Bill copyrighted Calvin and Hobbes, but by then, it was too late. The judge ruled against him, saying that "Well you should have copyrighted sooner." And that's kinda what's happening here. WB used the images, the cat owners copyrighted them after, and most likely a judge will say "Well, you're kinda too late here."

This is compared to when WB has videos copyrighted, and then goes after people who post that copyrighted material after it was copyrighted. Unfortunately, it seems like WB might end up on top here, and they'll just have a big grin on their face that they got away with it.

"Don't steal everything from the internet. Just steal what hasn't been copyrighted yet. They can't prosecute us for that."
I came into the thread to say this exact thing basically. As much as I don't like Warner Brothers, If the meme guys filled copyright after Scribblenauts then they don't have a legal leg to stand on.
 

CrazyCapnMorgan

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It's sad when those who have the money used to make the system seem to be impervious to its own hypocrisy. However, this is the sad truth of the systems in place nowadays - if you have the monetary means, you can be exempt from all of the bullshit surrounding you. The whole "Screw The Rules, I Have Money" thing.

Don't misunderstand me - if these creators are, indeed, worthy of recompense, then it stands to reason, moral and legal, that they should be compensated for the uses of their work. It's just after seeing nonsense like this happen over and over again, I wish this whole fething mess of a system gets obliterated, Exodia style, and then rebuilt so that it favors the creators, regardless of their net worth.

I realize that while greed exists this is a pipe dream, but still...!

Also, as far as the whole SEGA & Gearbox lawsuit goes, they showed a product "in progress". Now, is it possible that by proving that the game "regressed" instead of "progressed", it was misrepresented and, therefore, constitutes false advertising? I am not versed in law nor am I proficient in 'legalese', any clarification would be appreciated. Thanks in advance.
 

rdaleric

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I agree with you 100% both on WB deserving it and copyright law is a mess. Copyright law is stacked so much for the big guys to keep coining it in, Disney were a huge part in extending the length of copyright, which is so hypocritical since so many of their films are based on books that were copyright free.
 

T3hSource

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Yes, I agree that these companies finally deserve a taste of their own medicine, but I don't think it will matter that much for now.

On the subject of copyright law and 'protecting the artist's work', this is a tangentially related video I think, which provokes some interesting thoughts.
 

The Grim Ace

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Got to love how this is the same WB that, in exercising THEIR copyright, is preparing to -- if they haven't already -- remove all their shows and movies from Netflix. So, they definitely still know when and how to exercise copyright, just a little more vague on who is allowed that privilege.

The whole thing still leaves a bad taste in my mouth since the copyright system is beyond broken but glad to see the comparatively little guy screwing over a corporation at least once.

[small]Why do I have a bad feeling the courts will set some new precedent that basically boils down to, "well they have more money so there." Right, because that's the case more often than not...[/small]
 

Matthew Abbott

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Jimothy Sterling said:
1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.
Plus, last I checked, Willem Dafoe wasn't copyrighted.

Fair use is a fairly troublesome thing, and is largely subjective and unequally enforced (yet another reason why copyright law is all kinds of fuggered up). I honestly don't think that a WB defeat would mean any sort of significant change in how copyright is handled...I honestly doubt it'll even stop companies like WB from pirating material to any serious degree. I think it will result in a bit of catharsis from those of us who think that copyright law is unfairly weighted in the favor of massive companies that simultaneously attempt to bludgeon content creators with bags of comedy oranges while doing the exact same thing that they're orange-bludgeoning people for.
 

Jimothy Sterling

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The trademark copyright for nyan cat was objectively and factually filed AFTER the games release.
This is not a hiccup on dates this is the actual truth.
 

Clovus

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Chessrook44 said:
DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
This reminds me of another semi-famous instance that was similar. Bill Waterson was the creator and owner of Calvin and Hobbes, and was against doing any sort of merchandising aside from one or two calendars and a few collection books. Well some people made those Calvin Peeing stickers you occasionally see on truck windows or the like. Bill copyrighted Calvin and Hobbes, but by then, it was too late. The judge ruled against him, saying that "Well you should have copyrighted sooner." And that's kinda what's happening here. WB used the images, the cat owners copyrighted them after, and most likely a judge will say "Well, you're kinda too late here."

This is compared to when WB has videos copyrighted, and then goes after people who post that copyrighted material after it was copyrighted. Unfortunately, it seems like WB might end up on top here, and they'll just have a big grin on their face that they got away with it.

"Don't steal everything from the internet. Just steal what hasn't been copyrighted yet. They can't prosecute us for that."
Do you have a link or something to a Judge saying this? Everything I saw just indicated that the infringment was very wide spread before he reacted, so it was simply impossible to stop it. There wasn't a legal problem.

You don't have to register to own the copyright on something, you just have to create it in the US. You own the copyright on anything you create. Not registering it can have an effect on how much you can win in a civil case though. So, the late filing might affect the damages, but the WB could still be forced to remove the content.

Does anyone know if the game has other similar content? If you ask for Mickey Mouse, do you get that? I'm guessing not. If so, the WB should have respected all copyright, not just those of its fellow MPAA members.

As Jim said, "parody" and "fair use" really don't seem to help much here.
 

Azex

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For how WB continues to fuck over the Schuster and Seigel family, they deserve this kind of thing for at least 80 years
 

Jennacide

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He's the problem, right, they ARE totally being greedy about it, but it's also not entirely their fault. I'm friends with the owner of Level-Up Studios, who used to own the sole merchandising rights to both memes. The duo have a lawyer they go through, and even after signing a contract on the merchandising deals, the lawyer called Level-Up routinely, pissed off and claiming they were being ripped off. (A claim that only they made, while Level-Up mantains numerous other accounts, such as Edmund McMillan and Riot Games) Apparently, this lawyer has been trying to file any lawsuit that is even remotely plausible for a cash grab.

As for their use in Scribblenauts, personally I fail to see how this can not fall under Fair Use as satire? They are not a prime focus of the product, they are not there to garner additional sales, they are not the exact products themself. The keyboard cat sprite is just a cat playing a keyboard, and that doesn't have a leg to stand on. Nyan Cat is the same thing as the meme, but not the exact sprite, so you could also call it close parody. As many have said before me, if it's okay for Nyan Cat to become the point of a suit, can it's Pop-tart body become the point of a case by Kellogg's?
 

j0frenzy

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I'm going to work off the assumption that the copyrights were filed before the game was released, because that is one of the fundamental elements of a law suit that lawyers tend to notice and failing to notice that is one of those things that could lead to sanctions against the attorney. But if the dates really don't work in the plaintiff's favor on this one, then the case will get dismissed quickly and we can all move on with our lives.
 

Jimothy Sterling

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"More importantly, this to me, at least where warner brothers is concerned is fucking justice. Companies like WB have for a long time considered the internet a den of thieves out to steal from them"

Jim, this has very little to do with WB and whatever it has done in the past, say what you want about those things sure but for the sake of cthulu will you have the decency to not use this as an argument and pretend that "justice is being served" because it really isnt.

You are wrong, both objectively and factually because this video is MISINFORMATIVE.

The game WAS and ALWAYS WILL BE objectively and factually released BEFORE the trademark copyright of the Nyan Cat was even filed, this cannot be denied.

The only people this can hurt is us, the gamers and the internet.

1.If this is succesful then companies will have even more reason to believe that we're a bunch of thieves out for money and to steal whatever we can take just because we can

2.If this is succesful then things like scribblenauts, good games, will not be possible in the future

3.References, eastereggs and any kind of hint at anything will not be possible in any game

Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?
 

Machine Man 1992

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shrekfan246 said:
Machine Man 1992 said:
First, beyotch!
I hope the warning you're going to get was worth it.

OT: I didn't hear about the Scribblenauts thing.

My stance on the subject is that if the NyanCat and KeyboardCat guys tried contacting them to sort it all out and were subsequently ignored, Warner Bros. deserves whatever they get out of all this.

[sub][sub]What? I'm totally not still bitter about WB shutting down that free Middle Earth total conversion mod for Skyrim...[/sub][/sub]
Since this i the only time I've gotten a warning for a "first!" post ("consistency, what's that?" asked the moderators), and the second time ever I've been first poster, I'd still call that a win!

OT: So this is the first time I've ever heard of a lawsuit about internet memes, but I'll still say that I love any chance to take down capitalist pig dogs!
 

Andy Shandy

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For me, it just seems like a battle between two bastards. Personally, I don't think these two meme "creators" are really in this for anything but the money, and definitely not the "We'e fighting for the little man" like I've seen said about this whole fiasco but like you have also pointed out it's good to see WB stung by this, when they were a driving force behind these sorts of laws in the first place.

My main worry is though, if this is successful, will people be allowed to reference anything any more, without fear of being sued. Some of my favourite parts of games are little easter eggs that perhaps maybe reference other games and things like that.

So yeah, like I said, battle between two bastards.

After seeing what Jim has written, I'm now on the side on the Nyan Cat/Keyboard Cat guys, even if the reason they are doing this is mainly money based.
 

Sean951

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Lord_Gremlin said:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.
That sounded more like a "Waaaah! Taking it down would be hard!" He bring up Scribblenauts being older than Nyan Cat's copy right, but last I checked Nyan Cat didn't even EXIST until 2011, so of course the game pre-dates the copyright. While copyright laws can be ridiculous, I feel that the creators are entirely justified since people will be making money off the product. They clearly don't care about people making fun of it, making homages, satire, or any of that as evidenced by ALL the comics and videos about the Nyan Cat, so I really don't see a problem. They drew/filmed it. They copyrighted it. They own it.
 

Covarr

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Jimothy Sterling said:
DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
According to the creators, the legal blog that initially reported this suit got all the dates wrong.
They did get the dates wrong. However, I looked into it myself, and the first game was still released before either property was filed for copyright or trademark, at least in the US.

One thing I noticed in the complaint is that it mistakenly lists Keyboard Cat's copyright number for both properties, leaving Nyan Cat's number out entirely. I'm not a lawyer, so I don't know if this will actually impact the lawsuit in any meaningful way, but it's worth noting, anyway.

Not that it even matters who's right and who's wrong. WB will settle this out of court because it's easier and cheaper, and the story will reach a silent conclusion as such things often do.

P.S. Thanks
 

ex275w

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The Keyboard Cat copyright wasn't active before the first Scribblenauts game was released so at least that one's safe. Dunno about the other games.

I dunno Jim, this episode was more about you politics and proving a point rather than about facts. I agree with the point but being potentially disingenuous to push an agenda doesn't seem like a great idea. Also Lock's Quest is a great game, but they reference Metal Gear, so I guess Kojima should sue them :p.

By the way who's that pink greedy bastard, he seems familiar...
 

Jimothy Sterling

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Why are people constantly bringing up the first game in the series? The lawsuit isn't just about the first game in the series, so it existing before the Nyan Cat copyright has very little to do with it.
 

1337mokro

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Jimothy Sterling said:
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.
Right now I really don't see the positive here it just slays one monster only to have a bigger one with more things to DMCA spawn from it.

They were ALMOST completely identical, they did use their own art assets. Which is why I am saying that this MIGHT not end up as favourably. Any iteration of the copyrighted/trademarked thing might spark a suit or a take down. Simply because they have more ground now to "suspect" (read abuse) things for "infringement" (read not giving them money).

Yes copyright law is the best example of corruption and corporations have been given so much rights that they abuse without consequence that it makes me sick. That is why I want to give them as little ground as possible to get even worse.

You have a point about the differences though, but if it was all about being included in the credits or simply being treated properly, why are they suing for damages on top of lawyer fees?
 

Sean951

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Jimothy Sterling said:
Why are people constantly bringing up the first game in the series? The lawsuit isn't just about the first game in the series, so it existing before the Nyan Cat copyright has very little to do with it.
Because people are looking for some way to call the guys greedy and say their lawsuit has no leg to stand on.
 

Zombie_Moogle

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I'm with Jim on this one

Fair use is one thing (you wanna use a video clip or an image in your free web show, fine. hurts no one), but a company that sends out DMCA take-downs on whim, only to turn around & use copyrighted materials without so much as a source credit? Cannot be allowed

Intellectual property law is a mess & people exploit it, we can all agree on that; all the more reason to take the worst offenders to task
 

Azuaron

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Lots of people are talking about copyright filings, and how Nyan Cat's copyright was filed after the game was released. To be clear, everything is copyrighted as soon as it's created. This only reason to actually file a copyright with the government is that it allows creators to prove when something was created.

For instance, everything I've written right here is copyrighted, and I own it. I cede some of my rights to The Escapist so that they can legally reproduce and publish this comment, as agreed upon when I signed up for the forums. But I still own it. I could write an epic novel here, and no random person is allowed to come along and publish that novel because I own the copyright.

And, if I choose to file a copyright on that novel later, it doesn't "move up" the date of creation to the time of filing.

So, all these creators have to do is prove that they created Nyan Cat and Keyboard Cat prior to when Scribblenauts "created" the offending characters. And there's ample evidence that Nyan Cat was uploaded to YouTube in April 2011 and Keyboard Cat was originally recorded in 1984. The problem Keyboard Cat is going to have is that Charlie Schmidt (the original creator) has gone on record saying that anyone can use Keyboard Cat with or without permission, thereby effectively putting Keyboard Cat into the public domain. Nyan Cat, however, has no such problem.
 

Jimothy Sterling

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Monxeroth said:
1.If this is succesful then companies will have even more reason to believe that we're a bunch of thieves out for money and to steal whatever we can take just because we can

2.If this is succesful then things like scribblenauts, good games, will not be possible in the future

3.References, eastereggs and any kind of hint at anything will not be possible in any game

Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?
1. Why? This is a dispute between a creator and a publisher, not customers. I think you're drawing a knock-on effect from whole cloth. You're telling me my video is misleading, but you offer an assumptive prediction as counter. That's hardly better.

2. No ... they'll be entirely possible. Scribblenauts itself says in its disclaimer that copyrighted material is not possible. You can't, for example, conjure up the actual Solid Snake or Mickey Mouse in the game. Being unable to do so hasn't destroyed Scribblenauts so far, has it? Again, you've assumed something based on nothing.

3. References and easter eggs are totally different from including an entire named copyrighted character. You can *have* something in a game that looks maybe a little bit like the Terminator. You cannot have The Terminator. That precedent already exists, and this lawsuit isn't inventing a new precedent.
 

scw55

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orangeapples said:
DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
I think this is about Scribblenauts Unlimited which is after the copyright... Apparently Nyan Cat was copyritten in 2011 which is before the WiiU.
Which month?

Heroes of Newerth (a MOBA) sells a skin for a courier that is Nyan Cat for currency that is only obtainable via IRL money.

[youtube]http://www.youtube.com/watch?v=1_ZHDnKrwaI[/youtube]

They've... used 'popular culture' before with various skins. I'm just hoping this law suite might make S2 Games themselves be, more careful with regards to these things. Given that DOTA2 and LoL are significantly more popular games. It'd be a shame if HoN's reputation suffered from S2's ignorance.
-
I'm on the side of protecting intellectual property. Just because something becomes a Meme, doesn't mean the creator suddenly loses ownership of the associated image. I don't mean GOD FORBID U NO BREECH COPYRITE. I mean, ask permission nicely. If you explain your intent fully, a lot of the creators will say "yes".
 

Alfador_VII

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While I dislike Warner Bros almost as much as Jim, he really hasn't thought this one through.

If ths lawsuit succeeds, the implications are potentially very negative, it could mean the end of any sort of cultural references, and Easter Eggs in video games. The world would be a duller place if that happened.

Also I don't think he's right about 5th Cell. I don't actually know who holds the licence to it as it's published by Konami in Japan, and WB Games in the West. Assuming WB are liable for this and they have to pay up, I still don't think 5th Cell will be ok. After being dragged through the courts and made to pay out, do you really think that WB Games would publish another 5th Cell game?
 

Jimothy Sterling

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People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."
 

senordesol

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I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).

This is action movie 'justice' at best -where the bad guy gets his comeuppance via the same methods he used against the good guys and as cathartic and satisfying as that may be, let's face it; WB is NOT going to stop trolling the internet for mere hints of their copyrighted materials. I get that you are pleased that they're being bit by their own hypocrisy but this is ultimately not helpful and doesn't change anything.

Now, I'm not going to accuse the creators or Nyan Cat and Keyboard Cat of being greedy. As a content creator myself, I'd probably have a Goddamn conniption if I saw someone getting paid while using things from my work without permission...but mostly because they'd stand to make more money from a product that uses my work than I ever would from my work itself. I would hope that we could all agree that would kind of suck (for the content creator, at least).
 

Falseprophet

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Azuaron said:
Lots of people are talking about copyright filings, and how Nyan Cat's copyright was filed after the game was released. To be clear, everything is copyrighted as soon as it's created. This only reason to actually file a copyright with the government is that it allows creators to prove when something was created.
Someone else understands! Yeah, a legal copyright filing is just a registration. If you can prove your creation predates the infringement--say, with a YouTube upload that long predates the infringing game--you have a solid case to defend your copyright.
 

HalloweenJack

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senordesol said:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).
Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.
 

HalloweenJack

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senordesol said:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).
Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.

(Er, whoops, accidental double post. Sorry about that.)
 

ZeoAssassin

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i suppose, while i still don't particularly like the conditions of this lawsuit...Jim makes me think this is a necessary thing in the long battle for eventual copyright reform so bullshit like this is more reasonable/fair for the internet age.

After all if the big companies can get screwed buy the fucked-up way US copyright law works there may be a push for reform sooner rather than later. It will be an interesting few years anyway since I believe Micky mouse is approaching the copyright line where he will go public domain...meaning Disney will throw its weight (again) to have yet another extension on him because there's no fucking way they will give up Mickey without a fight, making copyright yet more unreasonable.

I suppose my thought regarding this case regarding "should" not the material facts...should people really 'own' memes like this? I mean the only reason they would become memes in the first place is because people take em and share them around with each other. Would that mean that any variation of the it like Nyan-TARDIS or whatever should be taken down?
 

hermes

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I don't agree with you, and don't see the point of this rant...
You act like this was a singular case and it is justified because "its a big company", but easter eggs and references are common in this industry, and only because WB is being sued now, its legitimate?

For example:
- Guacamelee was released recently and had dozens (if not hundreds) of references to sites, memes, other games and public domain jokes, some of them for famously unfriendly companies in terms of sharing their IPs (like Nintendo).. but I don't think they contacted any of the copyrighted material owners, so they are liable to be sued.
- Borderlands and (especially) Borderlands 2 had a lot of the writing being derivative of memes, internet jokes or catchphrases from TV shows (like having a character spew "cool story, bro" every few seconds), so that should make Gearbox and its writers huge targets for lawsuits. They even included the dancing alien from spaceballs (itself a reference to, gasp, WB's Michigan Frog) in Colonial Marines, so Mel Brooks should sue them.
- Bethesda included a reference to Minecraft (the Notch Pickaxe) in Skyrim. Given their less than amicable relation (Bethesda suing Notch for the use of the copyrighted word "scrolls"), I doubt they were given permission... So, I guess Notch should sue them for it.

Those are just some examples, from the top of my head, or other possibly dozens more... each one having about the same validity than this case. Yet, since this is 7th Cell (a big developer) and they are just poor guys who want to profit of their totally original creations, this is different? No, this is not different. This is like Tim Langdell (a small guy) suing EA and Namco (big corporations)... how did that ended up?
 

Orange12345

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I'm a little torn on this one, I am happy that the "little guy" is getting his voice heard but Nyancat is a freaking POPTART isn't that a copywritten/trademarked thing? if it is fair that they can sue WB for this could kellogg's come along and try to sue the nyancat creator? would that be fair?
 

Clovus

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Monxeroth said:
2.If this is succesful then things like scribblenauts, good games, will not be possible in the future
What? Why? Does Scribblenauts not work just because you can't include copyrighted items without permission? How are those even necesary for the basic gameplay involved?

3.References, eastereggs and any kind of hint at anything will not be possible in any game

Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?
That's very, very clearly a parody. Jay-Z is not going to sue anyone over that. The issue here is that the use in Scribblenauts was not a parody; they're simply just in there. You can't just stick Mickey Mouse into something as "a reference". You have to in some way parody the character to say something about him or about Disney (like South Park's use of the character). The fact that Scribblenauts is generally a funny game has no bearing here either because parody doesn't simply mean "funny"*. They weren't making any kind of point at all except that they wanted the characters in their game. You can argue that they just didn't know the creators would care, but that goes out the window when they refused to deal with them after the game was released.

The only way games are affected by this case if is won or settled in the creator's favor, is that big corporations won't so freely take things that your average person creates. They'll actually have to follow the same rules that they follow when dealing with other large corporations.

You know why you rarely hear about a lawsuit like this between big companies? Because they have legal teams that carefully review works before they are released to avoid lawsuits. These legal teams apparently decided that since Nyan Can and Keyboard Cat were both created by some schmoes, so feel free to take whatever you want. Also, those legal teams would still care even if the work had not been registered since it could still cause legal trouble for them when it is clear that they did not create the work.

* For example, if you took one of Jay-Z's songs and simply sang lyrics about tacos over it, you are probably not covered by parody. Unless it is widely known that Jay-Z, like, really loves tacos or something.
 

senordesol

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HalloweenJack said:
senordesol said:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).
Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.
Is it not parody, though?
 

Mahoshonen

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Jul 28, 2008
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Holy shit, the level of idiocy in this thread is staggering:

It's not an easter egg. It's not a reference. And for the last time it's not invalid because the First Scribblenauts-which was made before the videos even came out, was released and copyrighted first. (if that were how copyright law worked then there'd be nothing to stop Dr. Who from ripping off every other sci-fi series because "LOL our copyright is older!")

It's blatant use of copyrighted material without the slightest alteration, commentary, parody or thought besides screen-capping the two characters and inserting them into the game. Absolutely no creative effort was used. And WB showed no interest in even acknowledging that someone came up with it and would like credit where credit is due.

For how much the escapist loves to nash its teeth when game companies act like assholes, it's weirdly eager to defend them when someone finally calls them out on their bullshit. Stockholm Syndrome anyone?
 

Clovus

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senordesol said:
HalloweenJack said:
senordesol said:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).
Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.
Is it not parody, though?
No. Per the US Supreme Court, parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works."
 

Monkey Revenge

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This should most certainly fall within fair use. They aren't including any original assets.

http://upload.wikimedia.org/wikipedia/en/thumb/e/ed/Nyan_cat_250px_frame.PNG/220px-Nyan_cat_250px_frame.PNG

http://www.blogcdn.com/www.joystiq.com/media/2013/05/nyancathd.png

It is a parody, or more specifically in this case a visual arrangement. But that is insignificant to my point.


You can't have it both ways here either Jim. You can't be happy to see a big company being sued for something that is even arguably fair use but cry foul when a big company is suing a little guy for the same reasons. They flaw in your argument is that you are arguing 2 wrongs = right.

I'm a huge proponent for copyright reform (specifically when talking about software patents, as its disgusting the way these laws are abused by big companies) but it is incredibly hypocritical to be against companies doing this to the little guys, but to be for the little guy doing it to the big guy.

It sucks that WB and 5th Cell didn't respond to the creators of Nyan cat and Keyboard cat, and I would be supportive of a lawsuit to teach larger companies a lesson, but only when that law suit has real merit. Like if that guy who had his youtube channel closed because NBC filed a copyright complaint against him before Leno used his actual youtube video during Leno's show. That is the time to sue a big company for overreaching with copyright law. So if they used physical assets in the game, then I would support a lawsuit against them. But I really feel that 5th cell's inclusions of them should fall under fair use as much as using meme's within your own video's to illustrate a point. Since you are also creating videos for money.

I often do agree with your positions, but here not even close.


(Also let me settle the copyright thing right here, yes copyright is enacted at the moment of publication of your own work, but you cannot sue until it is registered. And when you sue retroactively to the copyrights registration it is limited what you can actually sue for, you can read more here, http://www.copyright.gov/help/faq/faq-general.html )
 

kuolonen

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Jimothy Sterling said:
People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."
Aye, this apparently is concept that can only be understood by people with PhDs. Perhaps a public service announcement video would be in order to educate the lesser fortunate? You could have funny little finger puppets to explain it!
 

-Dragmire-

King over my mind
Mar 29, 2011
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hermes200 said:
I don't agree with you, and don't see the point of this rant...
You act like this was a singular case and it is justified because "its a big company", but easter eggs and references are common in this industry, and only because WB is being sued now, its legitimate? For example:
- Guacamelee was released recently and had dozens (if not hundreds) of references to sites, memes, other games and public domain jokes, but I don't think they contacted any of the copyrighted material owners, so they are liable to be sued.
- Borderlands and (especially) Borderlands 2 had a lot of the writing being derivative of memes, internet jokes or catchphrases from popular TV shows (like having a character spew "cool story, bro" every few seconds), so that should make Gearbox and its writers huge targets for lawsuits. They even included the dancing alien from spaceballs (itself a reference to, gasp, WB's Michigan Frog) in Colonial Marines, so Mel Brooks should sue them.
- Bethesda included a reference to Minecraft (the Notch Pickaxe) in Skyrim. Given their less than amicable relation (Bethesda suing Notch for the use of the copyrighted word "scrolls"), I doubt they were given permission... So, I guess Notch should sue them for it.

Those are just some examples, from the top of my head, each one having the same validity than this case. Yet, since this is 7th Cell (a big developer) and they are just poor guys who want to profit of their totally original creations, this is different? No, this is not different. This is like Tim Langdell (a small guy) suing EA and Namco (big corporations)... how did that ended up?

The issue is not references, it's the inclusion of the actual character in the game. Were I to make a game, I could reference Bugs Bunny, possibly with an anthropomorphic rabbit saying a similar catch phrase to Bugs, but I would not be able to include Bugs Bunny directly. If I did, Warner Bros would sue me for copyright infringement.
 

Imp_Emissary

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Jimothy Sterling said:
1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.

True it's fun to see Warner Bros get a taste of it's own medicine, but this would be even worse if the Nyan cat and Keyboard cat people win. I seem to remember Batman showing up in one of your episodes, be that in clip or in costume. That would then have a legal precedent to get your ass sued off, after all I presume the escapist is paying you, what they pay you with is not really important but you are making a profit whilst using trademarked or copyrighted images in your work. This would eventually not harm WB but the creators, in this case 5th Cell and yes even you.

In the case of a Nyan cat or Keyboard victory it will result in a possibly worse version of copyright law. It's basically the Russian way of winning a war, by clogging the gears of your enemy with your own dead.
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.
They really did that? :/.........Why? Isn't that kind of like free advertisement?

Anyway, I'm with you Jim. The precedent is already here, so it would be nice for the creators to get bitten by their own monster for once.

Thank God for you, Jim. :)
 

hermes

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-Dragmire- said:
hermes200 said:
I don't agree with you, and don't see the point of this rant...
You act like this was a singular case and it is justified because "its a big company", but easter eggs and references are common in this industry, and only because WB is being sued now, its legitimate? For example:
- Guacamelee was released recently and had dozens (if not hundreds) of references to sites, memes, other games and public domain jokes, but I don't think they contacted any of the copyrighted material owners, so they are liable to be sued.
- Borderlands and (especially) Borderlands 2 had a lot of the writing being derivative of memes, internet jokes or catchphrases from popular TV shows (like having a character spew "cool story, bro" every few seconds), so that should make Gearbox and its writers huge targets for lawsuits. They even included the dancing alien from spaceballs (itself a reference to, gasp, WB's Michigan Frog) in Colonial Marines, so Mel Brooks should sue them.
- Bethesda included a reference to Minecraft (the Notch Pickaxe) in Skyrim. Given their less than amicable relation (Bethesda suing Notch for the use of the copyrighted word "scrolls"), I doubt they were given permission... So, I guess Notch should sue them for it.

Those are just some examples, from the top of my head, each one having the same validity than this case. Yet, since this is 7th Cell (a big developer) and they are just poor guys who want to profit of their totally original creations, this is different? No, this is not different. This is like Tim Langdell (a small guy) suing EA and Namco (big corporations)... how did that ended up?
The issue is not references, it's the inclusion of the actual character in the game. Were I to make a game, I could reference Bugs Bunny, possibly with an anthropomorphic rabbit saying a similar catch phrase to Bugs, but I would not be able to include Bugs Bunny directly. If I did, Warner Bros would sue me for copyright infringement.
In that case, the keyboard cat has no ground...
 

Moonlight Butterfly

Be the Leaf
Mar 16, 2011
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So are they going to sue everyone who has used it like the girls who sell earrings on twitter and stuff...

I don't know this just comes across to me as really petty.
 

Lieju

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It's pretty clear that WB thought taking those characters was safe for them, and that the law is different for big corporations, but I'm not sure if at least the keyboard cat is actually copyright-infringing.

Wouldn't it fit under fair use, since it's a cartoon-version of a well-known meme? Wouldn't it be considered parody? Couldn't I photograph a cat doing the same and include it in my movie or something? Of course that would mean that if that's allowed, having characters like Mickey Mouse with different than usual art-style would be okay as well.
 

senordesol

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Clovus said:
senordesol said:
HalloweenJack said:
senordesol said:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).
Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.
Is it not parody, though?
No. Per the US Supreme Court, parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works."
Having not played the game and, ergo, no idea as to the nature of the inclusions, I admit that my argument is weak here -- but 'commentary' can mean multiple things. Are KBC and NC doing anything apart from what it is they're known for? (i.e. can the Player 'ride' Nyan Cat or something?)

Then again, the legal line might be a little blurry here (which is why lawyers are paid so very well to clarify it). For example: Obviously silver had to cross a few palms when Star Wars characters were featured in Soul Caliber -even if they weren't advertised as features in the game but just as a secret unlockable someone would have had to get paid. But what if it was just some dude with a lightsaber?

So I guess where the legal hairs get split is what counts as a 'reference' and what counts as a 'feature'? Does being able to summon a character on-demand to do the thing it's famous for count as a feature? I weight it pretty heavily as 'yes'. And as such, it's creators should definitely get paid for it. On the other hand though, references and parody tend to have a pretty wide berth.
 

Covarr

PS Thanks
May 29, 2009
1,559
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Jimothy Sterling said:
Why are people constantly bringing up the first game in the series? The lawsuit isn't just about the first game in the series, so it existing before the Nyan Cat copyright has very little to do with it.
Because the first game was included in the formal complaint. The lawsuit may not just be about it, but the game is still included, and it does absolutely show that it was hastily and sloppily written. Don't get me wrong, I absolutely agree that they deserve compensation, but they are clearly trying to push their limits and get more than they deserve. That's what really bugs me about this; if they'd gone about this correctly and left it out (not to mention possibly bringing this up sooner instead of waiting for more games to lump into the lawsuit) I don't think it would get nearly the backlash it's gotten.

P.S. Thanks
 

-Dragmire-

King over my mind
Mar 29, 2011
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hermes200 said:
-Dragmire- said:
hermes200 said:
I don't agree with you, and don't see the point of this rant...
You act like this was a singular case and it is justified because "its a big company", but easter eggs and references are common in this industry, and only because WB is being sued now, its legitimate? For example:
- Guacamelee was released recently and had dozens (if not hundreds) of references to sites, memes, other games and public domain jokes, but I don't think they contacted any of the copyrighted material owners, so they are liable to be sued.
- Borderlands and (especially) Borderlands 2 had a lot of the writing being derivative of memes, internet jokes or catchphrases from popular TV shows (like having a character spew "cool story, bro" every few seconds), so that should make Gearbox and its writers huge targets for lawsuits. They even included the dancing alien from spaceballs (itself a reference to, gasp, WB's Michigan Frog) in Colonial Marines, so Mel Brooks should sue them.
- Bethesda included a reference to Minecraft (the Notch Pickaxe) in Skyrim. Given their less than amicable relation (Bethesda suing Notch for the use of the copyrighted word "scrolls"), I doubt they were given permission... So, I guess Notch should sue them for it.

Those are just some examples, from the top of my head, each one having the same validity than this case. Yet, since this is 7th Cell (a big developer) and they are just poor guys who want to profit of their totally original creations, this is different? No, this is not different. This is like Tim Langdell (a small guy) suing EA and Namco (big corporations)... how did that ended up?
The issue is not references, it's the inclusion of the actual character in the game. Were I to make a game, I could reference Bugs Bunny, possibly with an anthropomorphic rabbit saying a similar catch phrase to Bugs, but I would not be able to include Bugs Bunny directly. If I did, Warner Bros would sue me for copyright infringement.
In that case, the keyboard cat has no ground...
That, I have no idea about. This is the first time I've heard of this keyboard cat thing.

senordesol said:
Then again, the legal line might be a little blurry here (which is why lawyers are paid so very well to clarify it). For example: Obviously silver had to cross a few palms when Star Wars characters were featured in Soul Caliber -even if they weren't advertised as features in the game but just as a secret unlockable someone would have had to get paid. But what if it was just some dude with a lightsaber?

So I guess where the legal hairs get split is what counts as a 'reference' and what counts as a 'feature'? Does being able to summon a character on-demand to do the thing it's famous for count as a feature? I weight it pretty heavily as 'yes'. And as such, it's creators should definitely get paid for it. On the other hand though, references and parody tend to have a pretty wide berth.

I think you avoid legal trouble by not calling it a lightsaber. For example, in Terraria they're called phaseblades and in several games and shows, they're called beam swords.
 

kailus13

Soon
Mar 3, 2013
4,568
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AgentLampshade said:
What the hell is that at 3.54?! It is absolutely terrifying.
It appears to be the Sony Ericsson Xperiathon Ad. Using the "forever alone" meme.
More information on the forever alone meme here: http://knowyourmeme.com/memes/forever-alone
 

Something Amyss

Aswyng and Amyss
Dec 3, 2008
24,760
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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
Copyright in the states is opt-out, not opt-in.

You don't actually need to file for copyright to have copyright. You can file for copyright, which offers additional features (such as covering legal fees for contestation), but those aren't necessary.

Trademark (which, to be clear, this case is at least partially about) is opt-in, but can be filed after the fact and is still largely valid. WWE is a good example of a body who's successfully sued for trademark violations on trademarks acquired after-the-fact.

The problem here is an issue of dillution, and the status as an internet meme may be the biggest challenge to a trademark claim.

CrazyCapnMorgan said:
Also, as far as the whole SEGA & Gearbox lawsuit goes, they showed a product "in progress". Now, is it possible that by proving that the game "regressed" instead of "progressed", it was misrepresented and, therefore, constitutes false advertising? I am not versed in law nor am I proficient in 'legalese', any clarification would be appreciated. Thanks in advance.
They didn't show a game in progress. They showed a completely different entity.

The Grim Ace said:
Got to love how this is the same WB that, in exercising THEIR copyright, is preparing to -- if they haven't already -- remove all their shows and movies from Netflix. So, they definitely still know when and how to exercise copyright, just a little more vague on who is allowed that privilege.
Well, that's the thing. They don't have a problem with copyright, they just don't care unless it's theirs.

Matthew Abbott said:
Plus, last I checked, Willem Dafoe wasn't copyrighted.
Celebrities do have certain rights, however.

On the other hand, this is a depiction of an action figure of questionable likeness portrayed for parody purposes, which probably gives Jim a wide array of defenses not available to the Scribblenauts folks.

Lord_Gremlin said:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.
Smarter or not, he doesn't seem to have a very solid argument. They wanted it to be a complete game, yet they actively refuse proper service marks if you try and use them (barring certain licensed characters). Not to mention "WAAAAH! Slippery slope!" and his failure to understand the difference between a reference and the thing itself. And the fact that he doesn't understand what punitive damages reflect.

Look, I understand TB is fairly firmly in the corner of the gaming industry and justifies stuff. He's even rabid enough to remove dissenting opinions even when they cite legal reference or other FACTS. Maybe you are, too (It's hard to tell when someone just copies a link to someone else's opinion with no real input to offer themselves), but that doesn't make him accurate here.

I actually don't get why he's so upset that gaming might be hurt by this, when companies like WB ARE in fact so aggressively controlling of creative content that they don't even need to own the content before going after it.
 

MB202

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Thing about memes is that it's hard to tell where it originated and giving proper credit where credit is due... Not to mention, most people use memes the same way new Family Guy and the Scary Movie franchise uses it's jokes: with absolutely no context and expecting a mere reference to whatever subject to be a stand-in for actual humor or thought. That's probably why content creators hate memes so much... they consider it "disposable entertainment", least that's what I assume.

Jimothy Sterling said:
People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."
Maybe because that's the primary method in which most memes are used? Not that your wrong, but it would help in understanding why this confusion exists.
 

Entitled

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As much as I love to debate about file-sharing, and how much bullshit the laws regarding that are, yeah, this is basically a much more significant issue. Ther is an easy way around copyright trying to control our personal internet access, namely the fact that they are technologically incapable of doing it anyways.

But with the overuse of copyright claims in commercial works, it's riiculous to think about how much they are actually stifling creative work under the claim of protecting "their property".

Whether it's WB taking down fan videos, SSega taking down Jimquisition episodes, or these guys taking down Nyancat from Scribblenauts, it has came to a point where there is basically a huge amount of censorship on all products that are to be released commercially, and even if you don't plan to release it commercially, you can be literally forced to stop creating by C&D letters, just for including pre-existing characters, settings, or basically any element of 20th-21th century popular culture.

Just imagine how much more entertaining Scribblenauts could be, if you could actually objects and characters that appeared in movies. Imagine how easier writing would be, if artists wouldn't have to worry about their new works somehow "taking away property" from each other (or more likely, from corporations).

If it would depend on me, Fair Use would be an actual law instead of a doctrine, and it would be defined as "every newly produced creative work that is neither a direct replication of an earlier one, nor so similar that the average viewer consider it to be the same."

Imp Emissary said:
Jimothy Sterling said:
This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things.
They really did that? :/.........Why? Isn't that kind of like free advertisement?
Publishers are amazingly irrational in that regard. They pretty much placed profitability as a secondary issue, compared to having direct control over data usage.

For example, even if Fair Use would be interpreted so widely as I said above, that it would reduce IP to the specific works themselves and all "universes" would be free to use by anyone, the Big Five movie studios would have much more options than they have now: Spiderman could appear in The Avengers 2, the fucking Justice League could appear in Avengers 2, Sony could make it's own Harry Potter reboot, everyone would be making various Star Wars EU adaptations contradicting each other, and generally, they would continue to be the Big Five, and all get ridiculously rich from giving people what people want, using their big budgets.

The price of this would have to ignore that other people, not just the other four, butsmall fries and indies, are "touching their stuff" and using their own franchises as explicit inspirations.

so instead, they are grabbing with all ten at every possible controllable concept, just so they can spend millions constantly circle-suing each other for the smallest details. Not because it's necessarily more profitable, but because at this point, they just get a kick out of controlling stuff.
 

CrazyCapnMorgan

Is not insane, just crazy >:)
Jan 5, 2011
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Zachary Amaranth said:
CrazyCapnMorgan said:
Also, as far as the whole SEGA & Gearbox lawsuit goes, they showed a product "in progress". Now, is it possible that by proving that the game "regressed" instead of "progressed", it was misrepresented and, therefore, constitutes false advertising? I am not versed in law nor am I proficient in 'legalese', any clarification would be appreciated. Thanks in advance.
They didn't show a game in progress. They showed a completely different entity.
And here's, perhaps, a slippery slope argument towards this: what was presented and what was the final product are both similar. Though the quality is drastically different, nothing but the visual content was altered; unless there was a playable demo released to the public, in which case my previous statement is null and void. Also, when the demo video was released to the public, there was a message in the bottom of the screen "work in progress" or something to that effect. Both things presented, at demo trailer and launch, were games of the Alien franchise. So, unless both products were different in a magnitude that proves beyond a shadow of a doubt a complete reworking of their product, I'm not sure the lawsuit has enough merit.

To be clear, I personally believe SEGA and Gearbox are in the wrong, I just don't know (and completely comprehend, to be honest) if such a thing can be proven within the confines of the legal system.
 

Something Amyss

Aswyng and Amyss
Dec 3, 2008
24,760
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Azuaron said:
To be clear, everything is copyrighted as soon as it's created.
As true as this is, most people don't understand the difference between variosu IP laws and several people on this site will repeat the same stuff after corrected the next time the thread comes up.

scw55 said:
Heroes of Newerth (a MOBA) sells a skin for a courier that is Nyan Cat for currency that is only obtainable via IRL money.
Several groups have licensed Nyan Cat. Can you tell me for certain whether or not these folks have, since you are using them as an example? That would be a fairly important point for or against your argument.

Alfador_VII said:
If ths lawsuit succeeds, the implications are potentially very negative, it could mean the end of any sort of cultural references, and Easter Eggs in video games. The world would be a duller place if that happened.
It would, were this merely a reference.

senordesol said:
I can't go with you on this one Jim, seems like Fair Use to me...I mean according to the suit, the fact that you just showed gameplay footage from your video might constitute a copyright infringement (and I think we all disagree on that).
Jim's use seems firmly within the commentary/criticism category of fair use. I would like to know where you think Scribblenauts' use of Nyan Cat and Keyboard Cat fits. in the definition of fair use.

ZeoAssassin said:
After all if the big companies can get screwed buy the fucked-up way US copyright law works there may be a push for reform sooner rather than later.
Yes, but the odds are they will further dice it in their favour. As it is, they've gerrymandered the situation grossly to their favour. What makes you think they would suddenly decide to play fair, rather than pushing for legislation that would remove the unfavourable scenario?

Moonlight Butterfly said:
So are they going to sue everyone who has used it like the girls who sell earrings on twitter and stuff...

I don't know this just comes across to me as really petty.
Virtually nobody goes after stuff like twitter sales or etsys. I don't know why it seems petty that they wouldn't, either.
 

muffinatorXII

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first of all the lawsuit wont really hurt WB it will hurt 5th Cell way more.

also think about the precedent this lawsuit will set if it's successful. Scribblenauts has a ton of references of all sorts of stuff, including internet memes like Nyan Cat, and keyboard cat and even fucking rickrolling, and all those references and easter eggs are fun and cool little things for us to enjoy. games finding ways to incorporate these sorts of stuff is creative, it's fun, and this kind of stuff is punishing that creativity, which is the last thing we need in an already stagnating industry.

there are plenty of reason to dislike WB, but they're not gonna get punished, 5th Cell is. they're gonna be punished for making an interesting game, THE BASTARDS!

these guys are just looking for some money
 

Eve Charm

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Meh the thing is Nyah cat at least has a leg to stand on, the keyboard cat looks nothing like "keyboard cat" if this whole thing is about the actual copying vs parody of.

But who knows what they wanted, the fact they were contacting them before the lawsuit can just mean they wanted credit for there work, or hell why not a small percent to get using the actual nyah cat without permission.

I'm pretty damn sure no one bought scribblenauts because you can spawn the cats, but with all versions of the game able to connect to the internet, I say no less then updates with their names in the credits.
 

-Dragmire-

King over my mind
Mar 29, 2011
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Entitled said:
As much as I love to debate about file-sharing, and how much bullshit the laws regarding that are, yeah, this is basically a much more significant issue. Ther is an easy way around copyright trying to control our personal internet access, namely the fact that they are technologically incapable of doing it anyways.

But with the overuse of copyright claims in commercial works, it's riiculous to think about how much they are actually stifling creative work under the claim of protecting "their property".

Whether it's WB taking down fan videos, SSega taking down Jimquisition episodes, or these guys taking down Nyancat from Scribblenauts, it has came to a point where there is basically a huge amount of censorship on all products that are to be released commercially, and even if you don't plan to release it commercially, you can be literally forced to stop creating, just for including pre-existing characters, settings, or basically any element of 20th-21th century popular culture.

Just imagine how much more entertaining Scribblenauts could be, if you could actually objects and characters that appeared in movies. Imagine how easier writing would be, if artists wouldn't have to worry about their new works somehow "taking away property" from each other (or more likely, from corporations).

If it would depend on me, Fair Use would be an actual law instead of a doctrine, and it would be defined as "every newly produced creative work that is neither a direct replication of an earlier one, nor so similar that the average viewer consider it to be the same."


Jimothy Sterling said:
They really did that? :/.........Why? Isn't that kind of like free advertisement?
Publishers are amazingly irrational in that regard. They pretty much placed profitability as a secondary issue, compared to having direct control over data usage.
For example, even if Fair Use would be interpreted so widely as I said above, that it would reduce IP to the specific works themselves and all "universes" would be free to use by anyone, the Big Five movie studios would have much more options than they have now: Spiderman could appear in The Avengers 2, the fucking Justice League could appear in Avengers 2, Sony could make it's own Harry Potter reboot, everyone would be making various Star Wars EU adaptations contradicting each other, and generally, they would continue to be the Big Five, and all get ridiculously rich from giving people what people want, using their big budgets.

The price of this would have to ignore that other people, not just the other four, butsmall fries and indies, are "touching their stuff" and using their own franchises as explicit inspirations.

so instead, they are grabbing with all ten at every possible controllable concept, just so they can spend millions constantly circle-suing each other for the smallest details. Not because it's necessarily more profitable, but because at this point, they just get a kick out of controlling stuff.

I've heard this line of thinking before and like the current system, also limits creativity. I believe creators should be rewarded for their creations, within reason. Under what you are talking about, an artist could create a work and have absolutely no say in the matter if someone publishes that work as their own(as in, they say they created the concept for the ip). Not only that but the artist would constantly have to prove that the original idea was theirs in job interviews when presenting their portfolio. Now, from the consumers point of view, they now have a gigantic selection of media that all have the same characters and are mostly crap making it extremely hard to find what's good. Quality would be all over the place but mostly low as their would be no overseeing element licensing the ip to quality productions.

I just want the line for ip to move into public domain to be 25 years, after that it's open season on the ip. It gives enough time for the creator to profit and make sequels while making it possible for other people to take the ip in different directions in under a lifetime.

EDIT:

muffinatorXII said:
first of all the lawsuit wont really hurt WB it will hurt 5th Cell way more.

also think about the precedent this lawsuit will set if it's successful. Scribblenauts has a ton of references of all sorts of stuff, including internet memes like Nyan Cat, and keyboard cat and even fucking rickrolling, and all those references and easter eggs are fun and cool little things for us to enjoy. games finding ways to incorporate these sorts of stuff is creative, it's fun, and this kind of stuff is punishing that creativity, which is the last thing we need in an already stagnating industry.

there are plenty of reason to dislike WB, but they're not gonna get punished, 5th Cell is. they're gonna be punished for making an interesting game, THE BASTARDS!

these guys are just looking for some money
... I take it you just watched TB's content patch?

I really wish he understood the difference between a reference to a character and including the original character wholesale...

Also, putting a character someone else created into your own work is not a creative endeavor without context. Do you think Nyan Cat was included for creative reasons and including other ip like Mickey Mouse, Megaman, Mario or Sonic was avoided because it wasn't in their vision or wasn't creative enough?
 

mjc0961

YOU'RE a pie chart.
Nov 30, 2009
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I cannot stress this enough: Fuck Gearbox and fuck SEGA, I hope they lose. And especially fuck SEGA. I'm sick of people treating SEGA like the victim here. SEGA is the most guilty of all the offenders, not the victim. We, the gamers, are the victims. If SEGA had done their job as a publisher and not let Gearbox jerk them around for 6 years, or at least not released the game for any platform and just taken Gearbox to court, none of us would be out $60 for the massive pile of lies and shit that is Aliens Colonial Marines. Fuck SEGA fuck SEGA FUCK SEGA!

Anyway I was actually not aware that WB and 5th Cell were being sued over that. I didn't even know you could copyright memes. Really shows how fucked up copyrights are. And yeah, I know I didn't buy any Scribblenauts game for Keyboard Cat or Nyan Cat, nor did I use either in any of the games that I played. Two memes aren't really a selling point so yeah, they do seem greedy at first glance indeed.

But like you said, despite how fucked up it may be that you can copyright such things, they are copyrighted, and thus the copyright holders are entitled to sue and get compensation for the illegal use of their characters. And absolutely Warner Brothers would do the same thing if it was their characters showing up in some game without permission. Sorry Warner Bros, but fuck you. Hope you lose, because you deserve to lose legally and morally (even if I do have issues with being able to copyright a goddamn meme, but that's got nothing to do with the copyright infringement on hand here).

...Also fuck SEGA.
 

fix-the-spade

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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
Under US law, that's completely irrevelevant. There are plenty of copyrights and patents where the creator (or not the creator, life being what it is) files their registration after the fact, gets it accepted and then retroactively applies the copyright.

It's how Immersion got away with suing the bejesus out of Sony and Microsoft, their original 1995 patent has nothing to do with tactile feedback in game controllers, it was for the tactile reproduction of sound from TVs, it also relied on either a speaker or a stepping motor to theoretically work. Their updated 1998 patent (note, over a year after Dual Shock hit the market) suddenly included game controllers and weighted universal motors responding to non-audio inputs. They completely changed what their patent covered and the means used to achieve it, then sued the guys it now applied to.

They won the case, it was complete bullshit, but they won (Yay Patent Trolls!).

Also, in the US intellectual property is automatically the copyright of it's author (and for up to 70 years after their death) unless the owner signs it away or it's deemed to be an abandoned or 'Orphan' work where the creator (or their estate) is somehow impossible to trace or contact. Since Nyancat has it's own website and Wiki page, it can't be very well argued that Torres was impossible for Warner/5th Cell to track down and ask/pay for permission.
 

Froggy Slayer

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The only people here that I'm sad for is 5th Cell, they don't deserve to go down over this. Two wrongs don't make a right.
 

Imp_Emissary

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Moonlight Butterfly said:
So are they going to sue everyone who has used it like the girls who sell earrings on twitter and stuff...

I don't know this just comes across to me as really petty.
Well to be fair, they did try and talk the issue out first. You can't say they didn't try to have it end civilly, instead of ending in court.

If there is pettiness here, I'd say it's on both sides.
 

Vivi22

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Monxeroth said:
You are wrong, both objectively and factually because this video is MISINFORMATIVE.

The game WAS and ALWAYS WILL BE objectively and factually released BEFORE the trademark copyright of the Nyan Cat was even filed, this cannot be denied.
This might (and I really want to stress the MIGHT portion) be relevant in deciding damages, but when they filed for the copyright is irrelevant. Copyright is automatic so the second that person created nyan cat they had exclusive rights to it, and one would have to be delusional to think WB didn't know that. And I think this is something we need to be very clear on for those who seem to think that when the copyright was officially filed is relevant: there is no requirement to file for copyright with any official organization in order to hold the copyright. It makes it a bit simpler to proceed in litigation when you can point to it and say you have registered proof you're the copyright holder, but not having it does not vacate your rights as the creator of a copywritten work.

1.If this is succesful then companies will have even more reason to believe that we're a bunch of thieves out for money and to steal whatever we can take just because we can
If companies want to think we're a bunch of thieves because they stole and rightly got sued over it then they can go ahead and continue being morons/completely insane. We'll see how well that works out for them.

2.If this is succesful then things like scribblenauts, good games, will not be possible in the future
Bullshit. It just means they'll do the smart thing and get the rights before hand instead of stealing someone elses intellectual property. Not to mention this has absolutely zero impact on any original, generic, or fair use IP they utilize. WB losing this suit would literally have zero impact on the law as it exists today. Existing precedents would continue chugging along as they were before.

3.References, eastereggs and any kind of hint at anything will not be possible in any game
Again, bullshit. There's plenty of room for all kinds of things under various fair use exceptions such as satire. Every single point you've just made is needlessly alarmist and objectively wrong.

Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?
If it was a parody it would be perfectly fine under the law. If not a parody or something that falls under another fair use exception, he'd have to pay for the rights. Something a hip hop artist is likely familiar with anyway since so many of them sample other songs and pay various rights holders anyway.
 

V da Mighty Taco

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I just can't help but feel that 5 Cell will be the one to pay for this, rather than WB. Then again, if 5 Cell was approached by the original creators about this beforehand, then they probably deserve this as it was their decision to include Nyan Cat and Keyboard Cat, not WB. This really does seem more a case of 5 Cell vs creators because of this, rather than WB vs creators, and thus I'd say that people need to set aside their hatred of Warner Bros when discussing this particular case.

There are 2 main questions I have regarding the case being made here:

1) Were the characters Nyan Cat and Keyboard Cat copyrighted before their inclusion in each count of alleged infringement? Any inclusion of the characters before the copyright was filed are legally allowed, whereas any inclusion of the characters afterwards are indeed illegal.

2) What precedent will this set on copyright as a whole, and will the results do more harm than good? On one hand, we already have people like the MLP staff and game devs who actively are forbidden from taking fan suggestions or reading fanfictions of their own works because of lawsuits like these, as well as the obvious concerns over references and use of internet memes in for-profit works. On the other hand, you have a case of stopping people from just flat-out taking copyrighted works from content creators or even worse - the original content creators losing their IPs over not immediately defending their copyrights and trademarks. The whole ordeal with Bethesda and Mojang comes to mind with that, as well as the takedown of many fangames entirely out of fear of losing the IPs. All sides need to be considered in a case like this.
 

LetalisK

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Monxeroth said:
Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?
Eh? Did Valve do something I wasn't aware of? Because Jay-Z doesn't mention a "witch" in that song, nor have I found anything from Valve concerning "99 problems but a witch aint one"
 

Dana22

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From what I read, the suing guy owns the rights to "Poptart Cat", not "Nyan Cat" which is derivative of the first (and as a derivative, protected by us law).
 

Entitled

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-Dragmire- said:
I've heard this line of thinking before and like the current system, also limits creativity. I believe creators should be rewarded for their creations, within reason. Under what you are talking about, an artist could create a work and have absolutely no say in the matter if someone publishes that work as their own(as in, they say they created the concept for the ip). Not only that but the artist would constantly have to prove that the original idea was theirs in job interviews when presenting their portfolio.
I didn't say abolishing all IP, I said limiting it to the actual works themselves produced, instead of extending it to all aspects of franchises. (and obviously, plagiarism is an entirely different matter).

-Dragmire- said:
Now, from the consumers point of view, they now have a gigantic selection of media that all have the same characters and are mostly crap making it extremely hard to find what's good. Quality would be all over the place but mostly low as their would be no overseeing element licensing the ip to quality productions.
Qualiy *is* already all over the place, most big budget works are in existing IPs, and every time a new work gets popular, there are instant knockoffs, "inspirations", and genre imitators, that are entirely uninspired. Except that now they have to jump around legal barriers to exactly which IPs they are allowed to use, and in what way, instead of just telling whatever people are interested in, without limits.

The problem with IP-ing entire franchises, is that while it leads people to identify "new IP" with "original content", it doesn't really protect the values of originality, but the shallowest possible elements of it. Character names, costumes, strings of data, etc. It's purpose was never to inspire true creativity. Just look at Fifty Shades of Grey. It was Twilight fanfiction, and it could be published basically by replacing the main character names with other generic names.

Meanwhile, actual high quality fan-made works produced through several work-years, that take their premise seriously AND provide plenty of originally executed narrative, couldn't possibly do the same so they must hope really hard that at least they won't get persecuted if they stay non-commercial.

I just think that art is basically a form of communication, and it's normal that artists are reacting to each other.

"The Problem of Susan", a novella from Neil Gaiman, is a thought-provoking criticism to the theological message C.S.Lewis's Narnia stories, that could only be published because the protagonist was never formally identified as Susan, but as a woman who just happened to go through the same thing as her decades ago.

Harry Potter and The Methods of Rationality, is a novel-lenght story by Eliezer Yudowski, that contains thought-provoking criticism of many theological, moral, and logical implications of Rowling's Potterverse. And it could never get published, because it's the kind of story that explicitly identifies itself as fanfiction, with canon characters and plot points apparent.

Giving artists the power to control the fate of every work that is reacting to ideas started by them, is like giving forum OPs moderator rights for the threads that they started. I believe that an artist's right to their intellectual "property", shouldn't extend to limiting what art other people are allowed to create. It does nothing but limits the number of things that can be told.

Going back to Scribblenauts, it limits the number of items that can be used. Would that truly decrease the amount of creativity?
 

Lightknight

Mugwamp Supreme
Nov 26, 2008
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Jimothy Sterling said:
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.
Ah, that answers my initial questions. I figure the case will be argued more or less along the lines of fair use and can go either way from what we've seen. Interestingly enough, if it falls on the side of the defendants then a hefty legal bill could end up ruining the copywrite holders. One of the wonderful effects of a system that favors the group with the most money when the cost of losing is disparate.

Well, I expect some sort of settlement to wave it all away.
 

Fappy

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Jimothy Sterling said:
People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."
It can be a thin line to walk sometimes.

OT: I was on the other side of the fence when I was under the impression that the copyrights were filed AFTER the game's release. Now that I know otherwise I agree with Jim on this one.
 

rasputin0009

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I definitely don't think they're being greedy. They'll make maybe just a little more than their legal fees, if that. They just need to protect their work (no matter how trivial) so that it doesn't become a widespread issue where everybody starts using those memes in their commercials, movies, etc. without compensation.

In the end, fuck Warner Brothers.
 

Ilikemilkshake

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I agree with everything you've said BUT when it comes down to it, what harm is done from nyan and keyboard cat being included in the game? Are WB really making a profit from their creations because I highly doubt it. I think at the very least the creators should have been credited but anything beyond that seems frivolous to me.
 

Tanakh

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Good video on a non clear cut issue. One of your best works to create awareness and shed insight.

I think this deserves a follow up, there seems to be a great deal of confusion on legal issues and terms.
 

Darken12

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I completely agree. Systems should apply equally. Blades should cut both ways.
 

Sight Unseen

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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
You don't file copyrights... They're given the instant you create something new. This post I've just made is legally copyrighted to me and if you steal it verbatim you have committed a copyright infringement.

Copyrights are the only form of intellectual property that doesn't require licensing. Patents, Trademarks (registered ones anyway), and industrial designs all must be registered with your country's IP agency, but copyright doesn't. All you need to justify a copyright claim is proof that you created the copyrighted material before the infringers did, which may be something easier said than done, but since it's pretty common knowledge that Nyan Cat was created prior to this Scribblenauts game, it can be proven in this case.

The only way that WB may be able to make a case for this if they can prove that they used it in a scenario supported by Fair Use laws.

It's funny how much a lot of people don't understand copyright law.
 

synobal

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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
Ya from the U.S. Copyright office's website [http://www.copyright.gov/help/faq/faq-general.html#mywork]

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright
So ya you're argument is utterly without merit.
 

Sight Unseen

The North Remembers
Nov 18, 2009
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synobal said:
DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
Ya from the U.S. Copyright office's website [http://www.copyright.gov/help/faq/faq-general.html#mywork]

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright
So ya you're argument is utterly with out merit.
I believe I've beaten you to the punch on this one, but kudos for the fancy link and actual sources :D.
 

Bobic

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So, any news on whether the inventor of Nyan Cat payed any money for the use of the poptart that makes up Nyan Cat's torso?
 

Slash2x

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*looks at base issue on video* yeah not gonna touch that with a 3 meter pole.

To comment on the video.... I think you were channeling your inner Murloc at the end.
 

artician

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One thing I see a lot of is the fact that Nyan Cat is in several other commercial works. This is absolutely true, but it is irrelevant for two reasons. First, the creator of Nyan Cat has been approached by several companies, who then ask permission to use that likeness in their works. Money changes hands, and the creator IS credited. Neither is the case in the case against Warner Brothers. Second, this is a lawsuit against Warner Brothers. What other games and/or properties have done is not the case in question.

I also have seen a lot in this thread with people whining about "Precedent". This is completely irrelevant, ignorant, and pedantic. No precedent is ready to be set, except that maybe small content creators will be able to protect their creations from theft by large corporations. This type of suit is not new in any regard. Apple is suing Samsung over some design similarities (rectangles with rounded corners, look it up), the lawsuits against Youtube for parody works (Viacom Vs. Youtube). This suit is upheld the precedent of many, many lawsuits under the Digital Millennium Copyright Protection Act. All this said, I support the suit. Back to my first point, if other companies recognized the copyright held by the creator, and the fact that copyright is opt-out, not opt-in, it is clear that WB either did no research before using the property, or knowingly used the properties without credit, or payment.
 

Roman Monaghan

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At first I was like "they're sueing them cuz their memes are in the game? Really? How petty."

Then Jim was like, well, they did patent and copyright/trademark their material so it is an intellectual property that they /own/, and it was put in the game without their consent and with no acknowledgement or reimbursement, and then I was like "oh.... well then yeah, rock on, sue the mother fuckers."
 

Orekoya

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Lord_Gremlin said:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.
Oh yes, thank god for his slippery slope cry about the woes that would befall our vidja game industry should companies not be allowed to ransack and gut the internet culture wholesale and for the blatant misinformation about the suit at hand that he provides in a condescending tone.
 

Roman Monaghan

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Froggy Slayer said:
The only people here that I'm sad for is 5th Cell, they don't deserve to go down over this. Two wrongs don't make a right.
Uhh, no? I don't care what the person's repertoire is, they did wrong, they refused to make it right, so they do in fact deserve to go down. Someone could be a living saint whose saved thousands of lives, but if he flat out stole someones car they would and should still be subject to legal punishment for blatant theft. And as far as the law is concerned that's what this is: inclusion of someone elses intellectual property without credit or reimbursement to the original content creator. Jim may focus on WB alone, but fuck that, WB didn't send a note down to 5th Cell saying "include these cats in the game, they're popular." WB didn't ignore the original content creators efforts to get into contact with them. 5th cell fucked up, they ignored any opportunities to set things right, and now they're being punished for their stupidity. They can either take it as a lesson learned, or they'll continue to reap what they sow and they'll fucking deserve it. Making fun games doesn't make you immune when you break the law and generally act like a dick.

Orekoya said:
Lord_Gremlin said:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.
Oh yes, thank god for his slippery slope cry about the woes that would befall our vidja game industry should companies not be allowed to ransack and gut the internet culture wholesale and for the blatant misinformation about the suit at hand that he provides in a condescending tone.
TB is an ignorant hypocritical knee jerk fear mongering dipshit and I legitimately think lesser of people who look to him for "guidance" as opposed to the inane lowest common denominator "entertainment" he provides. You wanna listen to the funny man make silly noises while playing a video game like a toddler, no one has a right to say boo. You wanna listen to same funny man try to talk like an adult, you're the one who is gonna suffer for thinking to take his belligerence seriously. You try to shove that ignorant outlook on others, deal with the fact people are gonna get in your face about it.
 

Jimothy Sterling

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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
At worse case scenario this means the topic is DOA. If that's the case i think this if the first time ever i've seen a single poster with about one line of text utterly handed someone at zero punctuation their ass.

the best case scenario and Jim's response?

"According to the creators, the legal blog that initially reported this suit got all the dates wrong."
this becomes a he said, she said pissing contest in which no one here will have the right answer.

Sorry Jim, i know you like to kick big corporate, and at times it's fun, but I think you might been a little to quick on the draw, and till eager to see Warner brothers suck than die.

Still love the new back ground music. hope you keep it.
 

Gaias

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So much Cyril Sneer... Haunting the memories of my childhood... *runs away screaming*
 

AngelOfBlueRoses

The Cerulean Prince
Nov 5, 2008
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Monxeroth said:
Imagine if Jay-Z did this to oh i dunno Left 4 Dead for example because of "I got 99 problems but a witch aint one".
Would "justice" be served then?
The correct term is "*****." The lyrics go, "If you're having girl problems, I feel bad for you, son/I've got 99 problems but a ***** ain't one." It's *****. Get it right.

OT: Good on them for suing WB. Nice to see them getting a taste of their own medicine, especially if they didn't give any credit whatsoever.
 

cannedfury

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Aug 22, 2009
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Good lord, as nice as it is to see a big company get nailed, I hope the Nyan Cat people don't win. Not only is their creation mostly a copyrighted food product, it only got popular by borrowing the song from a different meme. That's like me taking the dancing banana meme, speeding up "Peanut Butter Jelly Time" a little, and lazily replacing the banana with a barely animated can of Monster energy drink. With a mustache or something. If that got popular, it's only from borrowing other material under the exact same excuse of "it was on the internet." Also the meme's predecessors put in way more work to make it happen, so demanding money for it like it was my original creation would make me a gaping asshole.

It's like if the pissing Calvin sticker jackasses saw their product (redrawn) in something else and sued them claiming "Hey, that's OUR original character!" Which for all I know they actually do, but if it caught on it would make things a lot worse for actual artists.
 

TrulyBritish

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Jimothy Sterling said:
Why are people constantly bringing up the first game in the series? The lawsuit isn't just about the first game in the series, so it existing before the Nyan Cat copyright has very little to do with it.
This is exactly what I'm thinking as I read through the comments, everyone keeps saying" But Scribblenauts was released in 2009, before Nyan Cat was copyrighted." When are people going to pay attention to the fact that this is about Scribblenauts Unlimited, which wasn't released until 2012?
Other than that, I think I'd be more lenient to WB on this case if:
1) These were proper references. I'd understand more if, say, when you give a keyboard to a cat it plays the keyboard cat tune or whatever. That would be an amusing reference. Just having it so the cat turns up by typing "Keyboard cat" is a bit naff.
2) I'm interested to see if the makers are right in that WB snubbed them while trying to be polite. Certainly, their reputation isn't endearing them to me.
3) I don't really see a reason WB couldn't ask for the right (or games wanting easter eggs later as well) to use the memes in the game. Sure, if you're a small company or just a single person making a fan video, I'd understand, but a big company like WB?
I'm justing waiting to see how this turns out though, seeing as I'm unsure of what'll happen afterwards. If it results in the start for some changes in Copyright law, it can't be too bad surely? But then, what do I know?
 

FoolKiller

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This reminds me of the Motorola patent suit vs. Microsoft. Basically Microsoft was allowed to pirate code because they're Microsoft and didn't want to pay Motorola the amount Motorola wanted.
 

Dfskelleton

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Despite the probability of this lawsuit being dead in the water, I agree with Jim. It's about time they get a taste of their own medicine. They've been doing this to other people for waaay too long.
My favorite example: Terrordrome.
A few guys had started up a homebrew project to create a high-quality 2D fighting game featuring a roster of 12 famous horror movie characters like Jason Voorhees, Freddy Krueger, Ash Williams, Leatherface, etc. They released builds of the game completely free from the website, and gave rightful credit to all of the parties responsible for the creation of the characters, but Warner Brothers and Orion still demanded that they take down the download link, even though the developers weren't making a profit on it.
Thankfully, the game is still in progress, and they'll be ready to release the final version (with the new inclusions of Pinhead and Pumpkinhead, boosting the roster to 14) around Halloween this year. Still, it frustrates me that they'd get so pissy about a fan game.
 

Snotnarok

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Not saying this about Jim here, but I think a lot of escapists need to know how copyright works before they drop their two cents in in a angry comment. Jim even in the comments has hit the nail on the head, WB is taking content and not giving credit, paying royalties but making money off it, using a batman image/mask in a video/image is covered by fanart/parody and very broadly infact but what WB is doing isn't a parody it's down to the exact name and a clear image is there. And it's been in use for many games it's not like a once off thing.
 

Jimothy Sterling

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I'm digging all these yanks completely filling up the "Americans have no idea what satire/parody is" stereotype. It's actually painful to watch.

Also noone seems to know how Fair Use in general works.

Also also I'm sick of all this "precedent" bullshit. There's already a precedent! Nintendo sent a fucking C&D for a pornstar using the word "Metroid", what the fuck precedent are you expecting? That the little guy can actually sue the big guy for once? Christ, what a horrible precedent. /sarcasm
 

Canadamus Prime

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Jun 17, 2009
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Copyright law as it stands is a fucked up mess. I with Jim on this. Hypocritical douchbag companies, I hope they get exactly what's coming to them.
 

QUINTIX

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This is worth comparing to the Jonathan Coulton/Glee fiasco
It's easy to see the "Baby Got Back" indignation to be more righteous because of the labor/talent involved, and Coulton not asking for money, just acknowledgement.

However, these two plaintiffs, however "trivial" their work may be, are not comparable to patent trolls trying to leach off of products actually on shelves (unlike what the trolls have). They have no history of such behavior. I doubt they even care for massive royalties, just that their copyright is treated the same as WB's copyrights.
 

Jimothy Sterling

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1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.
Miniature Fantasy Willem Dafoe wouldn't just disappear. Jim would have to get a complaint FROM Willem Dafoe himself for using his likeness in any sense, and even then it's a figurine that Jim bought and owns himself.

If you're going to debate copyright law, you need to get your facts straight.
 

Roman Monaghan

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He didn't make the Nyan Cat gif with the intention of it becoming a viral success. A meme isn't created. It's simply a word used to describe any viral material that has become popular on its own.
 

Raioken18

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I'm actually going to side with Warner Bros on this one, especially when it comes to what is essentially an easter egg. As long as it's not main content then I don't see why it should be a problem. Take World of Warcraft for instance, the bulk of the main content is the nature of the Alliance vs the Horde and their "original" storyline, but there are a bunch of sidequests which reference other games and tv shows. The first that came to mind was the Linken quest, which I just looked up and it no longer exists, but never fear there are still plenty of other references. Then there's games like Borderlands 2 that have references as well, like the 4 mutants who live in a sewer and eat pizza (TMNT) etc etc.

For those of you who are on the accusers side, how far do you think it should be taken? Should it extend to item descriptions as well? The Elder Scrolls series might be boned.

Then what about user generated non commercial content?

Frankly... I think copyright is taken too far. A few years ago my Youtube account was banned for some Battlefield BC 2 vids I made, I created a compilation vid of me strapping C4 to a quad bike and 1 hitting tanks. It was a blast to make. I asked a friends band if I could use their music and they agreed, they own the copyright to their songs so it shouldn't have been an issue either. The notice I received via email stated that I had infringed on copyright and game exploits and that if I questioned anything a legal shitstorm would come my way. I was pissed about that, I had other content on that account as well, and I would have gladly taken down the vids had I received some notice...

...and it's not even that. I made the vids because I loved that game, hell I still love Battlefield 3. It was just something that was intended to be fun and cool, I wasn't earning money with it... wasn't screwing with the man.

At least whoever's behind CoD lemme make quick scoping and throwing knife vids till my heart was content.

Still... it's not worth making stuff like that anymore...
 

Zer_

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Feb 7, 2008
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Jimothy Sterling said:
People are really struggling over the difference between a "reference" and "full inclusion of a named copyrighted character."
Indeed. Keyboard Cat and Nyan Cat in Scribblenauts Unlimited isn't a parody. It's a straight up clone of a copyrighted image.
 

1337mokro

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Tara Callie said:
1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.
Miniature Fantasy Willem Dafoe wouldn't just disappear. Jim would have to get a complaint FROM Willem Dafoe himself for using his likeness in any sense, and even then it's a figurine that Jim bought and owns himself.

If you're going to debate copyright law, you need to get your facts straight.
Says the person who thinks buying a figurine then gives you the right to use it however you want it, even for personal profit. No sir, it does not, with somethings you actually never really own them in the first place, it's in the small print.

My example was an exaggeration of what might happen if the mere reference or appearance of something becomes a copyright infringement. Which I suggest you brush up on because apparently you think that if you buy a batman puppet and make a batman movie with it, then release it for commercial gain you will not be slammed with a take down.
 

Jimothy Sterling

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Raioken18 said:
I'm actually going to side with Warner Bros on this one, especially when it comes to what is essentially an easter egg. As long as it's not main content then I don't see why it should be a problem. Take World of Warcraft for instance, the bulk of the main content is the nature of the Alliance vs the Horde and their "original" storyline, but there are a bunch of sidequests which reference other games and tv shows. The first that came to mind was the Linken quest, which I just looked up and it no longer exists, but never fear there are still plenty of other references. Then there's games like Borderlands 2 that have references as well, like the 4 mutants who live in a sewer and eat pizza (TMNT) etc etc.
Except there's a difference between making references, no matter how overt, and just including another person's content in your product. I don't see why this incredibly simple concept is that difficult for people to grasp. A bagel-bodied cat with an aurora shooting out as it flies would likely be fine and lawsuit free, since it's only a reference to Nyan Cat. Nyan Cat [http://scribblenauts.wikia.com/wiki/Nyan_Cat], on the other hand, isn't a reference at all, it's just the theft of someone else' work.

For those of you who are on the accusers side, how far do you think it should be taken? Should it extend to item descriptions as well? The Elder Scrolls series might be boned.
Are those item descriptions references or actual copyright infringement? Actually, you should just link the examples of this here so someone who understands what a reference is and why it isn't copyright infringement can evaluate whether or not your argument has any support.
 

Altered Nova

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I agree that Christopher Torres and Charlie Schmidt legally have a probably solid case. I also agree that Warner Bros are hypocrites and totally deserve this. But I also think that Torres and Schmidt are being massive hypocrites themselves and have lost a lot of respect for them for filing this lawsuit.

Nyan Cat and Keyboard Cat are memes. They have only become so mind-shatteringly popular because millions of people copied and used and modified and reuploaded them without asking for permission first. If Torres and Schmidt had enforced their copyrights from the beginning their creations would be have faded into obscurity and they never would have become famous or been in a position for a major corporation to use their characters in the first place. You can't just ignore your copyright for years so other people can make your creation famous without you having to lift a finger yourself and then spit on all those people by suddenly starting to enforce that copyright the instant you smell money. For those two to step back in now and claim "ownership" over the memetic quality of their works is insulting. It's a slap in the face to the community of folks who made those two memes popular. To do so is blatantly hypocritical, ungrateful and opportunistic.

Torres in particular is being extraordinarily hypocritical considering he has publicly admitted that his creation was originally a "pop tart cat" but has obviously never purchase a license from Kellogs to use their copyrights breakfast food in his work and his legal documents now go out of their way to call it a "horizontal breakfast bar."
 

Tommy Toejam

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Cushman & Denison owns the patent for paper clips, surely most of us has taken a paperclip from someone else's box. we should all be sued! when i was a kid i remember straightening out a papaerclip and making new shapes. i remember the guy at the phone store using the pointy end of one to insert my sim card on my iphone. shit, i'm fucked
 

Jimothy Sterling

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1337mokro said:
Tara Callie said:
1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.
Miniature Fantasy Willem Dafoe wouldn't just disappear. Jim would have to get a complaint FROM Willem Dafoe himself for using his likeness in any sense, and even then it's a figurine that Jim bought and owns himself.

If you're going to debate copyright law, you need to get your facts straight.
Says the person who thinks buying a figurine then gives you the right to use it however you want it, even for personal profit. No sir, it does not, with somethings you actually never really own them in the first place, it's in the small print.

My example was an exaggeration of what might happen if the mere reference or appearance of something becomes a copyright infringement. Which I suggest you brush up on because apparently you think that if you buy a batman puppet and make a batman movie with it, then release it for commercial gain you will not be slammed with a take down.
First of all, it's "Ma'am" not "Sir"

Second of all, as I said before, Jim would have to get a complaint from Willem Dafoe. And he's a busy man with much to do. He doesn't have the time to focus on this crap. And "Fair Use" laws exist for a reason.

Hell, Canada passed an internet piracy bill, and the politicians said "Eh, nobody's going to bother to sue you anyway."
 

1337mokro

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Tara Callie said:
1337mokro said:
Tara Callie said:
1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.
Miniature Fantasy Willem Dafoe wouldn't just disappear. Jim would have to get a complaint FROM Willem Dafoe himself for using his likeness in any sense, and even then it's a figurine that Jim bought and owns himself.

If you're going to debate copyright law, you need to get your facts straight.
Says the person who thinks buying a figurine then gives you the right to use it however you want it, even for personal profit. No sir, it does not, with somethings you actually never really own them in the first place, it's in the small print.

My example was an exaggeration of what might happen if the mere reference or appearance of something becomes a copyright infringement. Which I suggest you brush up on because apparently you think that if you buy a batman puppet and make a batman movie with it, then release it for commercial gain you will not be slammed with a take down.
First of all, it's "Ma'am" not "Sir"

Second of all, as I said before, Jim would have to get a complaint from Willem Dafoe. And he's a busy man with much to do. He doesn't have the time to focus on this crap. And "Fair Use" laws exist for a reason.

Hell, Canada passed an internet piracy bill, and the politicians said "Eh, nobody's going to bother to sue you anyway."
Apologies for that "Madame" though why you want it between "" is probably none of my business ;)

It was simply a manner of speech. The "No sir, It does not..." was added for dramatic effect, not a distinction of gender.

However like I already said it was an exaggerated statement, wherein the assumption is already made that Dafoe would take offence and issue a complain. Right now were he to issue a complain that complaint would fall on deaf ears because fair use and it is not the actual image of Dafoe, just a doll referred to with Dafoe. However if the mere act of referencing can be considered infringement then that same Fair Use law gets allot wobblier, not to mention the Fair Use law is already being pissed on repeatedly with no consequence by rights holders. The last thing they need is more ground to stand on.

Just because nobody enforces it doesn't mean it can't be enforced. This attitude is the same reason why ancient laws are still in place and things like going parachuting on Sundays is forbidden in some parts of the world or other weird specific nonsensical laws. Rather than cleaning up legislation it is rive with superfluity, absurdity and down right corrupt bills.

They invented the paper shredder for a reason, I suggest using it on most of the Law books.
 

Infernal Lawyer

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Jan 28, 2013
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So many thickies, so little time.

First off, Warner Bros. fucked up big time, not so much by forgetting to ask permission, but by blowing off the creators of the memes when they sent a friendly letter to them. You can argue all day whether Nyan Cat or Piano Cat are public property or whatever (it's not, they copyrighted the characters before Scribblenauts Unlimited came out, so shut up already), but the fact is if you use someone else's intellectual property thinking that it's okay, and they send a friendly, non-threatening letter saying "Um, you could have asked us first", you don't just ignore them. Hell, I was on WB's side on this matter until I found out that WB were being class A dicks and the meme creators were trying to settle the matter peacefully.

For those who claim filing lawsuit is greedy, what was the alternative? To do nothing and let WB get away with it? That would have sent the message that the massive corporations don't need to follow their own convoluted copyright laws when it suits them (i.e. when said copyrighted material is not their own). And trust me, we DON'T want to teach the big players that they can take anything that isn't nailed down or owned by other big players without at the very least asking nicely. I mean, really people. Do you really want to defend WB for not sending taking the time to write a letter saying 'pretty please'?

Secondly, THIS IS NOT A MATTER OF REFERENCING. 5th Cell put the characters into their game as-is, in the same way the Wreck-It Ralph film had existing video game characters inside it as-is, e.g. Ryu from Street Fighter, Bowser from Mario Bros etc. How is it so hard to understand the difference? If I make a game that includes a plumber who really, really likes mushrooms and owns a green dinosaur-shaped motocycle, that's a reference. Plonking a guy named Mario with red and blue overalls who shouts "yahoo!" a lot isn't. And no, just because this character was some easter egg that would only been seen on a blue moon when the stars align or whatever, doesn't mean that it gets away with avoiding copyright either, ESPECIALLY NOT if I advertise the game with said character, as WB did with Nyan Cat and Piano Cat.
 

Orekoya

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Roman Monaghan said:
Orekoya said:
Lord_Gremlin said:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.
Oh yes, thank god for his slippery slope cry about the woes that would befall our vidja game industry should companies not be allowed to ransack and gut the internet culture wholesale and for the blatant misinformation about the suit at hand that he provides in a condescending tone.
TB is an ignorant hypocritical knee jerk fear mongering dipshit and I legitimately think lesser of people who look to him for "guidance" as opposed to the inane lowest common denominator "entertainment" he provides. You wanna listen to the funny man make silly noises while playing a video game like a toddler, no one has a right to say boo. You wanna listen to same funny man try to talk like an adult, you're the one who is gonna suffer for thinking to take his belligerence seriously. You try to shove that ignorant outlook on others, deal with the fact people are gonna get in your face about it.
This was my first time to actually watch his videos. Actually the part that kills me is throughout his argument he displays an underlying hatred to the internet medium - the very medium he's using for his little podcasts. His attitude seems to be that since the copyrighted content was popularized by the internet then fuck the content creator for wanting to exercise their legal rights.

Raioken18 said:
I'm actually going to side with Warner Bros on this one, especially when it comes to what is essentially an easter egg. As long as it's not main content then I don't see why it should be a problem.
My bad, I wasn't aware of the "Easter Egg" Escape Clause in regards to blatant copyright violations.

daxterx2005 said:
wait, who owns the forever alone face?
A good question- I tried looking this up. The most prominent name to pop up was Dominic Vanner claiming ownership though whether it's true or not doesn't seemed settled yet he tried to act upon it against Team Meat. Other names that popped up when searching for the creator was Brandon Newton who has an older claim [http://www.gameranx.com/img/12-May/are20you20serious-2.jpeg] than Dominic Vanner and FunnyJunk user Azuul who has not made any claim and is merely attributed it on some websites, for some reason [http://www.funnyjunk.com/funny_pictures/465634/April/] though since I have no idea what Azuul's real name is.
 

Lovely Mixture

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Jul 12, 2011
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I'm a bit torn.

On one hand, I hate the precedent of lawsuits like this. On the other hand, because the precedent exists and these guys do have copyright, then for all I know this case is only fair.

Now on the specifics of the case. Maybe you can copyright a cat flying if it has similar graphics, but can you really copyright a cat playing a keyboard? Animals playing instruments isn't exactly original.

Would it have made a difference if they used different names and colored things differently?

Freezy_Breezy said:
Also also I'm sick of all this "precedent" bullshit. There's already a precedent! Nintendo sent a fucking C&D for a pornstar using the word "Metroid", what the fuck precedent are you expecting? That the little guy can actually sue the big guy for once? Christ, what a horrible precedent. /sarcasm
I think the importance of the precedent is that it will (hopefully) get things to change if the law sees how ridiculous the cases are getting.

That's how it worked in the civil rights movement. Plessy v. Ferguson ruled in favor of segregation, Brown v. Board of Education overturned that.


EDIT: missed that "sarcasm"
 

Something Amyss

Aswyng and Amyss
Dec 3, 2008
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Tara Callie said:
1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.
Miniature Fantasy Willem Dafoe wouldn't just disappear. Jim would have to get a complaint FROM Willem Dafoe himself for using his likeness in any sense, and even then it's a figurine that Jim bought and owns himself.

If you're going to debate copyright law, you need to get your facts straight.
You realise that likenesses are not covered under copyright law, and as such neither of you are arguing copyright at this point.

I'd normally let this slide, but there's the odd notion of two people not arguing copyright, one of which is insisting the other should understand copyright law.

Tommy Toejam said:
Cushman & Denison owns the patent for paper clips, surely most of us has taken a paperclip from someone else's box. we should all be sued! when i was a kid i remember straightening out a papaerclip and making new shapes. i remember the guy at the phone store using the pointy end of one to insert my sim card on my iphone. shit, i'm fucked
I'm going to assume you are being facetious here, and in fact understand why the two scenarios are quite different.

I'm also hoping you know that Cushman & Denison only own a trademark for "gem" in conjunction with paperclips, and any patent on a paperclip would have expired a century or so ago.
 

wolfyrik

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Jun 18, 2012
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Jimothy Sterling said:
1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.

True it's fun to see Warner Bros get a taste of it's own medicine, but this would be even worse if the Nyan cat and Keyboard cat people win. I seem to remember Batman showing up in one of your episodes, be that in clip or in costume. That would then have a legal precedent to get your ass sued off, after all I presume the escapist is paying you, what they pay you with is not really important but you are making a profit whilst using trademarked or copyrighted images in your work. This would eventually not harm WB but the creators, in this case 5th Cell and yes even you.

In the case of a Nyan cat or Keyboard victory it will result in a possibly worse version of copyright law. It's basically the Russian way of winning a war, by clogging the gears of your enemy with your own dead.
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.
Blocked? Wouldn't your use of trailers fall under "fair use"? As a reviewer and journalist, surely you should have some protection, especially given your location? Have things gotten so bad?
 

GAunderrated

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wolfyrik said:
Jimothy Sterling said:
1337mokro said:
I think there is a HORRIBLE oversight here Jim.

You see that little Willem Dafoe? That's a reference. You get away with it because of free use. If Nyan cat and Keyboard cat wins... goodbye Willen Dafoe. You see it sets a precedent, where easter eggs, references, little off jokes and cut away jokes are basically possible lawsuits waiting to happen.

True it's fun to see Warner Bros get a taste of it's own medicine, but this would be even worse if the Nyan cat and Keyboard cat people win. I seem to remember Batman showing up in one of your episodes, be that in clip or in costume. That would then have a legal precedent to get your ass sued off, after all I presume the escapist is paying you, what they pay you with is not really important but you are making a profit whilst using trademarked or copyrighted images in your work. This would eventually not harm WB but the creators, in this case 5th Cell and yes even you.

In the case of a Nyan cat or Keyboard victory it will result in a possibly worse version of copyright law. It's basically the Russian way of winning a war, by clogging the gears of your enemy with your own dead.
I think there's a difference here, though. Nyan Cat and Keyboard Cat aren't just comical references, they're included as-is, with no real parody or even a real credit. This lawsuit wouldn't set a new precedent if it succeeded, it already exists -- its why most games make up their own gun and car brands, and don't include real-life products without some sort of agreement.

This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.

Which I'm alright with.
Blocked? Wouldn't your use of trailers fall under "fair use"? As a reviewer and journalist, surely you should have some protection, especially given your location? Have things gotten so bad?
There have been many YouTubers who have boycotted SEGA games because SEGA has been actively harassing YouTuber channels and shutting them down for no good reason.

There are tons of videos but totalbiscuit covers the gist of it @ 14.20. https://www.youtube.com/watch?v=k84i3Op-LQI

Here is another one as well

https://www.youtube.com/watch?v=rQdFcf9SE5s
 

Strazdas

Robots will replace your job
May 28, 2011
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Lord_Gremlin said:
http://www.youtube.com/watch?v=Ks-snl4JM1U
I'll just post a link to Totalbisquit video on the subject. Watch it, Jim, for he's a smarter man. Thank god for him.
Totalbiquit is indeed a very smart man, however on this case he is incorrect. One of his mains points is that there are no real damage inflicted and only punitive damage. Well there are no real damage inflicted with piracy, and yet its illegal and WB goes to great lenght to fight agasint it. This is simply a case of double standarts and this lawsuit wants to striaghten that.
 
Nov 24, 2010
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Altered Nova said:
Nyan Cat and Keyboard Cat are memes. They have only become so mind-shatteringly popular because millions of people copied and used and modified and reuploaded them without asking for permission first.
Might be the case, but the million internetusers MODIFIED them (so nyan-cat is a MODIFIED poptart-thingy-modified->own creation and, eg. the pop-tart-ness is not obvious for pll like me who dont knwo what these things are)
so-modifying is not copying it.

then, second, the million internet-users didnt make money of it. Often its so, that copyrightholders might not have a problem with ppl using stuff without making money (with something they copied-remember, copying is bad, modifying is okay because then you had worked it into another thing)

so wb takes out videos which would fall under fair use and/or dont generate any income
but wb/5cell copying a creation of some people and making money with it (even if that copied thing is only a small part of the final product)without acknowledging copyright(while acknowledging copyright of other people... smells of assholery to me)
 

Jimothy Sterling

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Moonlight Butterfly said:
So are they going to sue everyone who has used it like the girls who sell earrings on twitter and stuff...

I don't know this just comes across to me as really petty.
They have to if they want their copyright to mean anything, and really how is it petty? Others are profiting off of their ideas, if you came up with a character and someone else used that character in a game without crediting you or asking for your consent fist, I imagine you wouldn't be too thrilled.

In short: "Is a man not entitled to the sweat of his own brow?"

1337mokro said:
Apologies for that "Madame" though why you want it between "" is probably none of my business ;)
Because it's how you present a word you are referencing in a sentence, such as the word "Careless" in this one.
 

Assassin Xaero

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I'm with Jim on this. Party also because if they don't sue, they it would be pretty much saying it is ok to use it and render the trademark (and the system) pointless. Side note, people need to stop throwing around the "greed" word, especially the greedy people who keep saying that they are entitled to getting DLC for free and shouldn't have to pay for it.
 

1337mokro

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Devoneaux said:
1337mokro said:
Apologies for that "Madame" though why you want it between "" is probably none of my business ;)
Because it's how you present a word you are referencing in a sentence, such as the word "Careless" in this one.
I think the word you were looking for was "Asshole", it's okay you can point out someone twisting your words for a joke when you see it :)
 

hazydawn

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Jan 11, 2013
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I agree with Jim. Why should the little man hold back(even if it is just for money) when big companies exploit the system to their heart's content? Maybe someday it'll lead to a better copyright system, and if not, than it's our own fault for letting this idiocy continue.
 

Therumancer

Citation Needed
Nov 28, 2007
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Chessrook44 said:
DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
This reminds me of another semi-famous instance that was similar. Bill Waterson was the creator and owner of Calvin and Hobbes, and was against doing any sort of merchandising aside from one or two calendars and a few collection books. Well some people made those Calvin Peeing stickers you occasionally see on truck windows or the like. Bill copyrighted Calvin and Hobbes, but by then, it was too late. The judge ruled against him, saying that "Well you should have copyrighted sooner." And that's kinda what's happening here. WB used the images, the cat owners copyrighted them after, and most likely a judge will say "Well, you're kinda too late here."

This is compared to when WB has videos copyrighted, and then goes after people who post that copyrighted material after it was copyrighted. Unfortunately, it seems like WB might end up on top here, and they'll just have a big grin on their face that they got away with it.

"Don't steal everything from the internet. Just steal what hasn't been copyrighted yet. They can't prosecute us for that."
Well, a lot of it comes down to what state you fight it in, as there are differant laws and standards in differant places. California is generally the most friendly to big business and copyrights (ironic given that it's a liberal bastion), which is why most EULAs and such require you to pursue legal action in California and using it's court system as opposed to being able to act against them in your own state's court system where beating them might be easier.

It should also be noted that you can retroactively copyright and trademark things, if you can prove that you had it first, and then force someone to cease and desist using your material, pay damages, and similar things. This is why you generally don't see more cases of companies prowling around looking for things that aren't copyrighted or protected and snapping them up. It happened here, but it stands out to an extent because you don't see it every day.

I know a bit more about criminal law than civil law of course, but as I said, jurisdiction matters, as does how good your lawyers are.

I also seem to remember that the picture of Calvin peeing was defended by it being "Bad Boy" and not Calvin, and there are enough subtle differances to diffeentiate the two on a technical level. This is why none of them are marked as being "Calvin and Hobbes". I might be remembering it wrong but I seem to remember this came with a borderline insult in claiming that the artwork for Calvin was generic enough to be impossible to copyright in outline form.

While it's a very long time ago, I seem to remember a similar case where there was a battle between the guys that did the video game "Lemmings" and the creators of "Fraggle Rock" which wound up favoring the game creators due to the generic nature of the basic "Fraggle" appearance. I don't remember that one too well though, but I do seem to remember it coming up.

The basic situation being one where the law prevents someone from being too broad with an artistic copyright, preventing say stick figures, smiley faces, etc... from being copyrighted, and this can be applied to a lot of other very basic patterns or outlines.

To be honest in the scope of this case I'm not 100% sure if Keyboard Cat could be defended as a cat sitting at a keyboard is a pretty generic image, and something people have been joking around about since pretty much the first feline jumped on someone's keyboard (probably the owner of the very first personal computer). Nyan Cat on the other hand is distinctive enough where there might be a case.

Of course in both cases I'd imagine one of the first things the courts are going to look at is how the popularity of both "cats" exists because of people using them throughout the internet as memes. The creators were not enforcing the copyright/trademark and that could be a problem. Being forced to defend your work is one of the reasons for the hyper-aggession you see from some corperations and their lawyers... leading to cases like how Bethesda's lawyers went after Notch for "Scrolls", allegedly without Bethesda itself and it's design team being involved or at the helm.

It will be interesting, and I do kind of hope to see big business take a hit, but the law has to be fairly universal, and to be honest both "Keyboard Cat" and "Nyan Cat" have been in public use long enough where on a lot of level this seems a lot like Tim Langsdell trolling over copyrighting the word "Edge" and so on. Our kitty creators didn't get involved until a big enough company was involved, and to be fair, probably smelled a payday.
 

Ebonrul

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I agree.

Granted, because of the sloppy mess that is copyright law, the final outcome is as unknowable as it is likely to be irrelevant. However, I absolutely agree on the cathartic joy of watching a major corporation largely responsible for the mess in the first place, step on their own dick while taking a piss.
 

Bashfluff

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Jan 28, 2012
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I should be okay with this. The logic seems fairly simple. While I do agree with free expression, I realize that people deserve credit for their work. But something strikes me as wrong about this, and I can't put my finger on it.
 

Something Amyss

Aswyng and Amyss
Dec 3, 2008
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CrazyCapnMorgan said:
And here's, perhaps, a slippery slope argument towards this: what was presented and what was the final product are both similar.
The one was presented as an actual presentation of the other. Pitchford called it "actual gameplay" and a "vertical slice" of the actual game in progress. These are not true, despite any similarities.

There's no slippery slope here, unless you're worried that one day people might not be able to intentionally lie to the public.

Though the quality is drastically different, nothing but the visual content was altered; unless there was a playable demo released to the public, in which case my previous statement is null and void.
Depends on how you slice "visual" as a term. The AI is different, the environments are different, the gameplay is different Gearbox was claiming that this was various scenes from the actual campaign, and it wasn't. I suppose you could call all that "visual," in which case I think it has more significance than you think it has.

Also, when the demo video was released to the public, there was a message in the bottom of the screen "work in progress" or something to that effect.
and Gearbox was still claiming it as representative, which is a problem.

Both things presented, at demo trailer and launch, were games of the Alien franchise. So, unless both products were different in a magnitude that proves beyond a shadow of a doubt a complete reworking of their product, I'm not sure the lawsuit has enough merit.
Part of the problem here is that you're not really applying legal arguments, but offering your spin on a legal decision. You also seem to be playing fast and loose with the information. There is enough information for the suit to have actual legs, and possibly win. They don't have to prove beyond a shadow of a doubt, and there is suficient enough evidence of deception.

And honestly, this doesn't impact most demos. I've never played a compilation demo where the footage wasn't in the actual game. I've never even seen another demo where the company was claiming actual parity. Have you? They were singing the praises of sequences that wouldn't make the game, lighting that wouldn't make the game, AI that wouldn't make the game....And they continued well after the final game would have "gone gold," so they damn well knew what that final product would look like.

If there is another group this applies to, then they probably deserve to be liable for false advertising, too. Most companies are more honest than this, and most demos may be polished to look as good as possible, but they don't take it to anywhere near this whole level.
 

CrazyCapnMorgan

Is not insane, just crazy >:)
Jan 5, 2011
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Zachary Amaranth said:
Fair enough, and thank you. Though, as I stated earlier, I'm not at all familiar with what legalities work in this situation, so that's why I was seeking clarification.

Upon further thought, would "bait and switch" also be applicable in the lawsuit against SEGA and Gearbox? It seems to me it would, unless that is included in the false advertisement. In which case, I'll shut up about the whole damned thing.
 

Something Amyss

Aswyng and Amyss
Dec 3, 2008
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Raioken18 said:
I'm actually going to side with Warner Bros on this one, especially when it comes to what is essentially an easter egg. As long as it's not main content then I don't see why it should be a problem. Take World of Warcraft for instance, the bulk of the main content is the nature of the Alliance vs the Horde and their "original" storyline, but there are a bunch of sidequests which reference other games and tv shows. The first that came to mind was the Linken quest, which I just looked up and it no longer exists, but never fear there are still plenty of other references. Then there's games like Borderlands 2 that have references as well, like the 4 mutants who live in a sewer and eat pizza (TMNT) etc etc.
There's a difference between having Nyan Cat in a game and having parodied Ninja Turtles in a game. There is a difference between having the actual item and a reference.

I don't know about the specific quests, but if it was actually referential, that's not a problem. Nobody's saying it is.

wolfyrik said:
As a reviewer and journalist, surely you should have some protection, especially given your location? Have things gotten so bad?
\

Reviewers and journalists don't get much protection from the DMCA. The DMCA largely supercedes fair use, though it hasn't been challenged on those grounds. Also, as Jim lives in MO, I don't know what his location has to do with anything. However, even if he were British, it would block off a large body of viewers.

Jman1236 said:
Nice to see supporters of SOPA getting there just desserts.
Not to mention people who use the DMCA at the drop of a hat. A LOT of people complain about WB filing DMCA complaints even when they don't own the material.
 

BramblinTheGnome

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Might want to watch your step, this thread is full of slippery slopes. Apparently if we allow someone to get credit for something they created we now have to make sure to never reference anything ever.

I would prefer falling back onto the old "If you make money or gain services off of someone else's creation you have to credit/pay them as the person or the laws see fit. If you don't, then reference away." I'm not sure what's so difficult or distasteful with the idea of asking someone before stealing their ideas and claiming them as your own.
 

personion

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I love 5th Cell and Scribblenauts. They're some of my favorite games. It's a shame they're getting hit with this. I don't really agree that they're "getting what they deserve" by using Keyboard Cat and Nyan Cat in their games. It was an amazing experience to find in-jokes like that in a random DS game. As for the snubbing, it seems like they didn't think that the creators understood how the memes worked- after all, many other sources of media use pop-culture references and don't sued. I hope the lawsuit doesn't go through, I want to see more Scribblenauts.
 

Jimothy Sterling

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Jimothy Sterling said:
DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
According to the creators, the legal blog that initially reported this suit got all the dates wrong.
And the creators of the monster are under attack as well. Good,I say! I think Jon Stewart said it best: "You can't say "Release the Kracken" and then claim to be the victim."
 

Jimothy Sterling

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And while the entire world squabbles over a few unimaginative ideas, no one cares that we as a race are culturally devolving into mainstream shit that leaves no room for new content.

This is the reason we're still rebooting content that was interesting and groundbreaking, like Star Wars, and we're seeing very little new content that's anywhere near as interesting.

You just know when stuff like Wolfenstein gets yet another release, people stop bothering being creative and taking a risk.
 

QtheMuse

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Actually S2 recieved permission to use nyan cat from the author for monetary gain before they used it.
 

Orekoya

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personion said:
I love 5th Cell and Scribblenauts. They're some of my favorite games. It's a shame they're getting hit with this. I don't really agree that they're "getting what they deserve" by using Keyboard Cat and Nyan Cat in their games. It was an amazing experience to find in-jokes like that in a random DS game. As for the snubbing, it seems like they didn't think that the creators understood how the memes worked- after all, many other sources of media use pop-culture references and don't sued. I hope the lawsuit doesn't go through, I want to see more Scribblenauts.
This is not a pop-culture reference. If you typed in 'nyan cat' and the game just made the nyan-nyan sound bit from the video or made a rainbow pass quickly through the far background where you wouldn't have able to see the cat; that is a pop-culture reference. What actually happens when you type 'nyan cat' is that game pops out the nyan cat's likeness. You've typed in a copyrighted character's name and got said copyrighted character. If this game was produced by another company, you typed in Sam Winchester and then got Jared Padalecki's likeness; it would be a safe bet to say that Warner Bros would be quick to do the same if not worse.
 

asinann

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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
Under copyright law the copyright exists from proven date of creation (not hard with memes,) not date of filing.
 

Something Amyss

Aswyng and Amyss
Dec 3, 2008
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CrazyCapnMorgan said:
Upon further thought, would "bait and switch" also be applicable in the lawsuit against SEGA and Gearbox? It seems to me it would, unless that is included in the false advertisement. In which case, I'll shut up about the whole damned thing.
Bait and Switch is more or less a specific case of false advertisement. The idea is that you lure customers in with a low price model that you don't have in stock and then try and push upon them a different model (often of a higher price). In this case, Pitchford and Co were still insisting it was the same product.

I'm not a legal EXPERT, I must say, but based on my understanding of the laws I'm pretty sure this wouldn't count.

I do want to see this play out, one way or the other.
 

MeisterKleister

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Mar 9, 2012
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I think the video of that real-life 'Forever Alone' guy is amazing! Where can I find that? Google doesn't come up with that video when I search.
 

Sir Prize

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I'm pretty much in agreement with Jim, if only because WB would and have done similar things. You shouldn't complain about getting kicked in the shins when you do it as well. Also maybe if enough of this type of thing keeps happening someone will take a long hard look at copyright law, but that's just wishful thinking.
 

Infernal Lawyer

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I'd like to personally address the people who think that it's 'hypocritical' of Jim to think that it's fair for WB to get smacked by copyright laws when he complains about publishers sitting on IP or pulling out the banhammer on 'offending' youtube videos because of the same laws:

Guys, there's nothing wrong with making a piece of work and expecting to get credit for it. Anyone with more than two brain cells to rub together would agree. The problem is that copyright laws as they rife for abuse and allow copyright holders to completely screw over people for minor infringements such as fan tributes or charity works. If Nintendo sued WB for using it's characters in Scribblenauts without permission, there would be absolutely no debate: Everyone would agree it was stupid of WB to use said characters offering money or at the very least asking, plus I very much doubt that they would ignore an angry letter from Nintendo saying "Give us our due, you thief" (yes I know they were licensed out, I'm not an idiot). And yet here we are in exactly the same circumstances, except for the fact that the copyright holders aren't massive companies (and also that the characters were only licensed just before the third game if I'm not wrong).

We don't hate copyright owners as a rule. We don't have a problem if WB gets mad when people put Bugs Bunny as a feature (rather than a reference) in their pay-to-play game or uses him to advertise said game, and we would fully respect their rights to sue. We understand WB's concerns with piracy and we don't mind legitimate threats being warned and/or taken down. What we DON'T like is when companies ban Youtube accounts because of fan-tribute videos (or even game reviews featuring game footage or even TRAILERS for the game, god forbid), threaten to sue men who craft copyrighted character costumes to wear at Cancer charity events (Nickelodeon threatened an NZ man for making a SpongeBob SquarePants suit from raw materials and attending a charity parade, even though owners of dozens of other characters featuring in the parade didn't mind) or using automated software to threaten anything that so much slightly resembles the TITLE of one of their films. Those acts of douche-baggery simply cannot be compared to what is undeniably stealing something and using it to promote your own paid software without so much as any sort of recognition.

Oh, but Nyan Cat and Piano Cat surely aren't making them any money or influencing any sales? THEY'RE IN THE FREAKING ADVERTISEMENTS. LOOK IT UP.

You are allowed to copyright something, gain profit off it and expect to be the only one gaining profit off it. We're fine with that. We just don't want you to be a dick about it.

Orekoya said:
personion said:
I love 5th Cell and Scribblenauts. They're some of my favorite games. It's a shame they're getting hit with this. I don't really agree that they're "getting what they deserve" by using Keyboard Cat and Nyan Cat in their games. It was an amazing experience to find in-jokes like that in a random DS game. As for the snubbing, it seems like they didn't think that the creators understood how the memes worked- after all, many other sources of media use pop-culture references and don't sued. I hope the lawsuit doesn't go through, I want to see more Scribblenauts.
This is not a pop-culture reference. If you typed in 'nyan cat' and the game just made the nyan-nyan sound bit from the video or made a rainbow pass quickly through the far background where you wouldn't have able to see the cat; that is a pop-culture reference. What actually happens when you type 'nyan cat' is that game pops out the nyan cat's likeness. You've typed in a copyrighted character's name and got said copyrighted character. If this game was produced by another company, you typed in Sam Winchester and then got Jared Padalecki's likeness; it would be a safe bet to say that Warner Bros would be quick to do the same if not worse.
What he said. Claiming something is a reference and not a feature because the developers 'used their own art style to create their version' is ridiculous. Because stealing/failing to give credit for someone else's work/creation is only wrong when you copy it pixel for pixel, right?
 

EstrogenicMuscle

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Jimothy Sterling said:
This is not to say, however, that my show is free of licensed material. Hell, SEGA has actually blocked some of my episodes from YouTube for using footage from its trailers, of all things. I don't like it, but this lawsuit wouldn't set any new sort of precedent, just turn around the existing ones on those who set them in the first place.
SEGA has been going crazy with copyrights lately. It is making me lose respect for them.

Which is sad because it seems they are finally getting back on track. Sonic Generations, Sonic and SEGA All-Stars Racing games, NiGHTs into dreams... lots of re-releases of classic games. They put up not only NiGHTs into dreams on Steam, XBOX, and PlayStation 3, but also Jet Set Radio, Sonic CD, Sonic Adventure, and lots of other stuff. They're polling fans abroad to see if they would like the Hatsune Miku games. And there's even talk of another Shenmue game.

But this stuff isn't doing them any favors. Heck, I've heard they've gone viciously after anything and everything Shining Force related. SEGA needs to stop this.
 

Soulcleaver

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May 16, 2013
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Enough is enough. We have to stand up to the Copyright Gestapo or they will nickel-and-dime us to death while crushing all creativity.
 

r_phix

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Mar 12, 2012
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Well...
The day I saw "It's Peanut Butter Jelly Time" in Family Guy, with the dog Brian dressed up as a giant Banana, I laughed a lot ; and I was so happy to be surprised by the presence of internet meme, internet culture, on this show ! This was like a "private joke" between the scenarists and me.

But what's if now, everyone fears of using internet references ?

This is the best way to kill this popular culture... If the creators of Nyan Cat and Keyboard Cat win... well... good for them... but they will be the only winners... everyone else, us included, will lose. I will wait before opening the Champagne...
 

dbenoy

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Jul 7, 2011
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DVS BSTrD said:
Except for the fact that the game was released BEFORE the copywrite was even filed.
Copyrights are automatically granted on creation.
 

dbenoy

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Whether I'm on the side of the meme creators depends on what their intentions are.

If they're doing this because they believe it's their right and they're entitled to the fruits of this extortion, then I'm not on their side.

If they're doing it to give this publisher a taste of it's own medicine, then I'm a fan for life :D
 

JimB

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Apr 1, 2012
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So a friend of mine was just watching this video, and he says he recognizes that pink-snouted critter standing in front of the gold bars that Mr. Sterling likes to use to represent avarice (EDIT: in this specific video, he appears at 1:36-1:38). He says it belongs to some old cartoon about aliens kidnapping Santa, but he can't remember its name. Does anyone know what he's talking about?