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Nyan Cat Creator Speaks Out Over Lawsuit Against Scribblenauts Dev

scribblenauts_unlimited_largeYesterday, we reported that internet meme creators Torres and Schmidt were filing a lawsuit against Scribblenauts developers 5th Cell and publishers Warner Bros. over copyright infringement within the Scribblenauts series.

Now, Torres has issued a statement to Eurogamer claiming that the lawsuit had been misreported and is determined to set the record straight. He claims that he was unaware about the use of the meme in Scribblenauts until it appeared in the debut trailer for its latest instalment – Nyan Cat was copyrighted in 2011, while Scribblenauts Unlimited was released in 2012.

The statement reads:

“We reached out to the companies in hopes of working out an amicable resolution of the issue, yet were disrespected and snubbed each time as nothing more than nuisances for asking for fair compensation for our intellectual property. That’s not right. I have no issues with Nyan Cat being enjoyed by millions of fans as a meme , and I have never tried to prevent people from making creative uses of it that contribute artistically and are not for profit. But this is a commercial use, and these companies themselves are protectors of their own intellectual property. Many other companies have licensed Nyan Cat properly to use commercially.

“In Scribblenauts Unlimited, you have to actually type out the words ‘Nyan Cat’ and ‘Keyboard Cat’ to get our characters to appear in the game. In fact, the game forbids you from making any copyright references in their games with a pop-up error. Meanwhile, 5th Cell recently negotiated proper rights for several Nintendo characters for their games. Just because popularity with millions of fans has caused Nyan Cat and Keyboard Cat to become famous by virtue of their viral or meme nature, doesn’t give these companies a right to take our work for free in order to make profits for themselves, especially considering too that they would be the first to file lawsuits against people who misappropriate their copyrights and trademarks. It just isnt fair.

“I’ve been working alongside with the creator of the music and the lady who uploaded it to YouTube since the start. There are many reputable companies that have respected our rights and negotiated fees to use our characters commercially. Warner Bros. and 5th Cell should have done the same.

“Since Warner Bros. and 5th Cell chose to act as if we had no rights in characters we created, filing a lawsuit was the only way we had to protect our intellectual property rights from being used for others’ commercial profit without our consent. Too often normal artists like us don’t have the means and resources to protect our rights against big media corporations who use our work for their own profit without permission. We are looking here just to be treated fairly and to be fairly compensated for our creative work.”

94 comments

  1. I think the lawsuit is silly. If you have a “meme” and put it out to share freely on something called the “internet,” expect someone to use it somewhere down the line. And gimme a break, the developers were more than likely throwing it in there as a tribute or a salute to something that was (at least once) funny. Now I think the meme’s creators are a bunch of crybabies that feel like the internet owes them everything.

    1. “I think the lawsuit is silly. If you have a “meme” and put it out to share freely on something called the “internet,” expect someone to use it somewhere down the line. ”

      he did expect it to be used .. or if he didn’t expect it at least he didn’t mind it being used, just as he’s saying in his statement

      when it’s being used for something commercial that’s a different story however

      you don’t forfeit your IP rights just because you put something on the internet.. it doesn’t suddenly become public domain when you do that

      1. It was just a silly little tribute to the popular meme though, it’s not like they were explicitly saying “Hey, we created this so that’s why it’s in their game.” I know if I put something on the internet like that (not like a song or a movie, but a silly animation or image), I would be ECSTATIC if a game developer gave me a nod in their game.

      2. that’s you and this is him
        while you may not mind someone using your IP for commercial purpose he does

      3. Well, he should loosen his grip, considering it’s a harmless tribute.

      4. maybe he doesn’t want a tribute though?
        he never meant his picture to become this popular.. maybe he doesn’t give a fuck about the game or the tributes therein? and if it really WAS a tribute then the creators wouldn’t have minded to compensate him or at least ASK now would they?

        i know if WB didn’t ask me before using an IP of mine and didn’t even think about compensating me, even after reminding them of who owns the rights, i would most definitely sue

      5. If it’s just a harmless tribute, they should’ve just asked permission or negotiated a harmless payment.

        But since they didn’t negotiate it’s use it’s not “harmless”. If he doesn’t defend his copyright, he will lose his rights. That’s the way the law works.

      6. no that’s not how it works
        you can’t lose your copyright while you’re still alive

        you can explicitly transfer those rights to someone else but you can’t lose them by being passive

      7. he never used the song with the gif, someone else did (and as he’s saying in the article he had good relations with the creator of the song)

        poptarts aren’t protected by copyright, they’re a trademark and that’s just the name.. you can’t put a copyright or a trademark on the basic shape of a poptart

      8. Aparently you can do that with the shape of a phone, though. Poptart should sue.

      9. if it was in a tangible product then perhaps

        if i made something shaped like a poptart that you can toast and eat then kellog *might* be able sue me but whether they actually have a case or not that would be for a court to decide..

        certainly not for a drawing of something that roughly resembles a poptart tho.. if that was the case then apple could sue any drawing that uses a rectangle with rounded edges x_x

      10. It’s a toaster pastry. There are at least 10 brands of those in my local supermarket. Kellogg’s can’t sue based on a pastry.

    2. Tbf they have a point though. Sever stuff that Warner Bros. created is shared on the internet. You think they won’t come out for you in full force if you try to use it commercially though? Their youtube DMCA takedown notices for anyone even mildly infringing on their copyright speaks for itself.

    3. It’s stupid, because memes like Keyboard Cat have been in the game since the very first game and there’s been no issue

      1. Did you even read the article? He was unaware of it’s use in the game until they used his character in a trailer for the most recent version. And Keyboard Cat creators are suing too.

    4. God you are fucking stupid, why are you protecting big corporations anyways? They would do the same if an individual did that with their IPs. Did you even read the article? Idiot.

  2. i’d tend to agree with him

    this whole issue could easily be settled i guess.. there probably wouldn’t even be a need for a court case

  3. This is ridiculous. Like there’s any notion of creative intellectual property in a meme…

    It’s not as if 5th Cell had advertised the fact you can use Nyan Cat in the game at any point. The game pays tribute to the meme, it doesn’t milk it for money, this all is absurd.

    1. Did you even read the article? They used nyan cat in the trailer for the game. That means they DID advertise the fact that you can use it in the game.

    1. Why not YOU try to do a sprite art animation?

      Besides, if a 10 year old boy would release a product (like a drawing) online (for example), he would STILL have copyright over said product, and thus, he’s STILL entitled to sue others for copyright infringements.

  4. What a surprise, a big company ignoring people and stealing their stuff in the process.

    Am I the only one totally super cerial surprised?

    1. not the only one but apparenlty one of few since the majority seems to want to side with WB and 5th cell.. like they wouldn’t sue the shit out of someone for even the tiniest of infringements

      it’s sad really how idiotic some people are

      1. Then only difference between the creations of WB and the Nyan cat creators is this; One company represents tons of intellectual properties protected by a long string of copyrights, to a point it wouldn’t be worth infringing copyright. The other is an image of a cat in a pop-tart, rainbow-farting its way through the sky–with no copyright implied. That’s why it’s a ridiculous lawsuit.

      2. you don’t have to “imply” a copyright for it to apply to your creations

        anything you create is automatically protected by copyright with no further action necessary

      3. Oh, is that so? Then how come any time a band wants their music copyright-protected, they have to go through several government applications in order to secure said copyright?

        It’s not like you upload something to the internet and have the Internet fairy waving her magic wand saying “THIS IS NOW COPYRIGHTED.” It doesn’t work like that, sorry.

      4. “Oh, is that so? Then how come any time a band wants their music copyright-protected, they have to go through several government applications in order to secure said copyright?”

        any sources for that? because what you’re saying simply isn’t correct

        here something to read up on
        http://www.copyright.gov/help/faq/faq-general.html#mywork

        “It’s not like you upload something to the internet and have the Internet fairy waving her magic wand saying “THIS IS NOW COPYRIGHTED.” It doesn’t work like that, sorry.”

        correct this isn’t how it works.. because it is protected by copyright the moment you create it, not only after you upload it to the web
        and THAT is how it works

      5. Even if you’re right, do you really think the lawsuit will go anywhere? Any judge with a sense of decency would see it’s ridiculous, considering that hundreds upon thousands (even millions) have infringed the copyright by downloading the original video, images, and what-not for their own personal use on forums and such. It’s not gonna go anywhere.

      6. “Even if you’re right, do you really think the lawsuit will go anywhere? ”

        it’s not a question of IF
        don’t try to downplay it
        i am right

        any judge with a sense of decency will honor the copyright law and the rights of an individual artist in the face of a giant entertainment conglomerate
        the copyright law is pretty clear on that and doesn’t leave much room for interpretation
        it’s his works and as such he has exclusive rights to its usage

        whether he wants to pursue those rights in any particular case is up to him and him alone and the fact that others have used his works without him filing a lawsuit does not void his rights to his works in any way

        more to read up on
        http://www.hypergridbusiness.com/2011/08/how-to-lose-your-copyright-in-three-easy-steps/

      7. The simple fact that they’re gonna sue WB over the use of a cat farting rainbows through the sky still makes me laugh, and nothing will change that for me. So as I said, EVEN IF you’re right, I’m still gonna think the creator is a first-world whiner.

      8. that’s fine by me and probably fine by him aswell

        i doubt anybody involved really cares about what you think about them

      9. Oh, and you’re right–they probably don’t care, and I could care less that they don’t care.

      10. Yeah but they didn’t stop the original creators from making money
        They weren’t selling those images/videos whereas WB was trying to make money off of something that wasn’t theirs

      11. It’s not like WB was flat-out advertising that Nyan cat would be in the game. It was a neat little surprise to discover for yourself within the constraints of the game world. If it had been the other way around, I’d completely understand.

      12. and yet it has generated a lot of publicity for the game
        even i have heard about nyan cat being in the game even tho i’ve never played it
        if you make a google search and filter out the last couple days (because they’re full of news of the lawsuit obviously) you’ll find several pages mentioning the nyan cat in scribblenauts

      13. The fact that this news has generated more publicity for the game probably has WB clapping. It’s an unfortunate oversight the creators of Nyan cat probably never intended on, but that’s sort of their own fault–they had to have seen that coming.

      14. i don’t see why they should care about the publicity this news generated

        it’s not like they’re begrudging WB their profits it’s that they’re not content with WB not sharing any of it in spite of using their works (without even asking beforehand)

      15. The moment you create something you have the copyright. But if you want to be able to sue for damages, you have to register the copyright. Look…

        From the government’s own copyright web site:
        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.

  5. These guys have the tightest buttholes. They need to loosen their sphincters and chill. It’s just a little tribute to them.

  6. Are some of you guys commenting idiots?
    WB would sue the hell out of you if you used some of their IP for commercial purposes and that’s perfectly fine, but when WB breaks the same law they use to protect their IP, it’s not fine to sue them?

    What the fuck is wrong with you? Is your IQ lower than your shoe size?
    No matter how stupid the content may be, it’s not yours and you need to compensate the creator.

    hey broke the law, they should be sued. Period. There is nothing to discuss.

    1. Just because we disagree with the merits of the lawsuit, doesn’t mean we’re idiots. Chill.

      1. That would be like me calling you an idiot because you use Bowser as your forum image. It would make no sense, and it would make me look like a prick. No, I’m not an idiot for disagreeing. I’m simply speaking my mind.

      2. as a matter of fact you did

        “The other is an image of a cat in a pop-tart, rainbow-farting its way through the sky–*with no copyright implied*. That’s why it’s a ridiculous lawsuit.”

        accentuation added where appropriate

      3. But I never directly said they didn’t have the right to sue…

      4. true you didn’t directly say that but if you’re saying they have no copyright on those works then you’re also saying they have no right to sue
        it’s as simple as that

      5. No I’m not. All I said was copyright wasn’t totally implied. That doesn’t mean I said they didn’t have the right to sue. Quit reading into things that aren’t there.

      6. you never used the word “totally”

        at that point you had absolutely no idea how the copyright actually works

        if you say “with no copyright implied” you’re saying they have no copyright on those works
        and if they don’t own the copyright they cannot sue thus have no right to sue

        i’m not reading anything into anything, you have to stand up for what you wrote is all

      7. YOU ARE A MORON THEY HAVE THE RIGHT IF THEY DONT HAVE THE PERMISSION STOP BEING A MORON AND USE COMMON SENSE YOU DENSE MOTHERF**KER

      8. Except for 1) Knowing something does not makes you an idiot. You don’t know Julius Caesar’s third cousin twice removed’s favorite art style? Idiot.
        2) Nyan cat, to my knowledge, did not register for copyright, therefore can’t sue.
        3) Just because someone has an opinio mnemonic doesn’t mean they’re an idiot. Someone had an opinion at one point, and that opinion lead to the creation of copyright laws.

      9. Look at the original creator of Nyan Cat’s blog, or even just read this post and you’ll see it says they registered it for copyright in 2011, before the game came out

        And in regards to your first statement if I was in a blog post speaking out about Julius Caesar’s third cousins twice removed’s favourite art style despite not knowing shit about it then I would be an idiot

      10. if you don’t agree with the merits of the lawsuit you don’t agree with the merits of copyright and that sadly makes you an idiot

      11. I agree with the merits of copyright, but not of this lawsuit. I know how to punctuate, use proper grammar and spelling, and I have an understanding of how things work. But yeah okay, because I disagree with one lawsuit I guess I’m an idiot to some of you.

        But, I can reassure every last one of you keyboard warriors that I could give a damn what you think of me over some comments on the internet.

    2. I sort-of agree. If this was a big company, and their character was used as a character in a game even though it’s a minor part of the game without permission, it would be a huge deal whereas this small group of people have owned two really popular memes over the internet, and now it’s used in a game and everyone thinks they’re crybabies for sewing them? What the fuck? The guy DID bring out quite a few valid points.

      1. *suing.

        And while I do agree that there are some very valid points, I still think it’s a silly lawsuit.

      2. Someday… if you ever create something popular enough to be worth money… you’ll probably change your mind.

      3. Not really, I’d take it on the chin and be proud someone out there recognized my creative works.

      4. even if bobby kotick used it for his next CoD campaign and made millions of it because it’s so damn popular? ;)

      5. If it were the central focal point of their game, maybe I would consider it. However, if it were a small nod to it (like Nyan is in Scribblenauts), I wouldn’t give a crap.

      6. And I’ll say it again in 20 years, and then another 20 years, and another, and another, until I’m dead. I seriously would not care.

      7. If you “take it on the chin and be proud” when someone steals your work… then how are you ever supposed to make a living as an artist? Why would anyone EVER pay someone for their creations if every artist does what you suggest they do? Steal whatever you want, no need to pay! They’ll just take it on the chin and be proud.

        Ridiculous.

      8. Funny thing is that some companies try to do that already, asking for free custom artwork to artists in exchange of “exposure”. Like if that would feed their children, is ridiculous

  7. Yo jack stop sucking wb dick, the copyright system is there for a reason. Either you play by the rules or you don’t play.

  8. Ok you are both stupid he has the right to sue them if they didn’t get his permission so it’s not right if they did and he just says they didn’t be doesn’t have the right so both of you shut up

  9. Not a fan of 5th Cell blowing this guy off, even if they think that stealing someone’s property, not telling him about it, and using it for a product they are profiting off of is somehow OK. A tribute? Than why the shadiness? And I’m busting a gut at some of the random copyright “facts” being pulled out here. Sad.

    It reminds me of when Glee ripped off Jonathan Coulton outright. Sure, not the same case but another one where the big company gets away with it legally.

    Really disappointed. :/

  10. While i doubt anyone bought this game because of his IP, he does have the first and final say in how his created property is used and presented. Speaking your mind in conflict with that is in poor taste. Even though the whole thing is stupid, we couldnt commercially release a justice league ANYTHING without being sued in the same way.

    WB shouldve just given the man his 5 dollars and been done with it.

  11. The creator was reaching out to settle but they were treated as nuisances and was disrespected. And it is true the WB would sue people if their IPs were used by others whether it is just a tribute or not. Because the characters were used within the game and WB profited, then Nyan Cat’s creator is only protecting his rights.

    Apple sues everybody that resembles their product even if it was aesthetic only (rounded corners, samsung phones looking like iphones, etc.) and even sued a GROCERY STORE for their name (Apple vs. A.pl) saying that it is too similar and the store is cashing in on their popularity. Isn’t that more ridiculous? http://www.pcmag.com/article2/0,2817,2409669,00.asp

    WB used the copyrighted image thus can be sued by its creators. Pretty straightforward in my opinion.

  12. Lol this thread. I love Scribblenauts, but don’t care either way. It sounds like both sides were being a little ridiculous and both sides are being butthurt over a little thing.

  13. Just take the cat out of the game or make a patch that well make him look different.

  14. You know what. This guy is right! 5Th Cell and Warner Bros. are in the wrong here! You have to get proper permission no matter how small the licensed property!!! 💋

  15. This is really dumb. A company just wanted to do this for the fans. Making a small tribute doesn’t hurt anything.. It’s not like the company is taking away Nyan Cat from the Internet that was free, and charging everyone for it. This is just in a game you could buy, and was a support for the “meme”. If anyone doesn’t want to buy it, then you can always go back to the free version of Nyan Cat..

    Having Nyan cat on here would help support the culture of it.

    Also if this lawsuit was valid, that doesn’t mean it’s not dumb. It’s still very dumb.

    1. You’re wrong. With copyright, it’s defend your rights or lose your rights. If they let one company slide, then they’ve opened the doors to let every infringing use slide… and if they have a pattern of that, then the courts could easily rule that they don’t own the copyright anymore. Using the character without permission is a direct threat to his copyright… that’s how the “small tribute” hurts him.

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