Jimquisition: Lawsuits, Memes, and Tasty Medicine

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.
 

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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Jun 7, 2010
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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.
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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.