Jimquisition: Lawsuits, Memes, and Tasty Medicine

[Orekoya]

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.

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.

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]

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?

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]

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.

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]

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]

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]

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.

 

[wearesoneutralthatithurts]

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)

 

[Assassin Xaero]

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]

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

 

[Jman1236]

Nice to see supporters of SOPA getting there just desserts.

 

[hazydawn]

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]

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]

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]

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]

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]

snippity

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]

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.

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.

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]

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.