You’d think that creators of memes would be thrilled to see their work get a little nod inside a videogame… after all, memes tend to have less than Warhol’s “15 minutes of fame” these days, seeming to come and go faster than you can say “dogfort.”
However, the creators of the Nyan Cat and Keyboard Cat memes would disagree. Strongly. And with teeth.
They’ve gone ahead and slapped 5th Cell and Warner Bros., developer and publisher of Scribblenauts games, with lawsuits that cite copyright and trademark infringement.
These “Easter egg” meme references have been inside the Scribblenauts games since 2009, when the first game released for the DS. The tradition has continued through Super Scribblenauts as well as Scribblenauts Remix for iOS and Scribblenauts Unlimited (Wii U, 3DS).
Nyan Cat creator Christopher Torres and Keyboard Cat guy Charles Schmidt have filed a complaint with the U.S. District Court in the Central District of California, alleging that the likenesses of their famed memes were used by 5th Cell and Warner Bros. without express permission:
“[F]or the past three years, WB, along with game developer 5th, have knowingly and intentionally infringed plaintiffs’ copyrights and trademarks by using “Nyan Cat” and Fatso’s image in WB’s top selling ‘Scribblenauts’ games,Including, most recently, ‘Scribblenauts Unlimited’, which WB released in 2011.”
However, the release year for Scribblenauts in the quotation above is incorrect, though it’s correct elsewhere in the filed complaint—and here’s where things get tricky. Neither meme was trademarked until 2010, which was a year after the release of the first Scribblenauts game. That… could end up being problematic for the complainants.
