Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.senordesol said:
Jimquisition: Lawsuits, Memes, and Tasty Medicine
- Thread starter Jimothy Sterling
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Unless they're using Keyboard Cat and NyanCat for parody, criticism, comment, news reporting, teaching, scholarship or research, Fair Use isn't applicable here.senordesol said:
(Er, whoops, accidental double post. Sorry about that.)
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?
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?
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?
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?
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?
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?Monxeroth said:
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.
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?
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?
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 )
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 )
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!Jimothy Sterling said:
hermes200 said:
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.
They really did that? :/.........Why? Isn't that kind of like free advertisement?Jimothy Sterling said:
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.
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.
I don't know this just comes across to me as really petty.
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.
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.
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?)Clovus 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.
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.Jimothy Sterling said:
P.S. Thanks