WB Cat Fight: Nyan Cat, Keyboard Cat Sue Warner Bros For Copyright and Trademark Infringement

 @ryanWneal
on May 03 2013 12:18 PM

Cats have long been power players on the Web, but two of the most popular Internet cats will take on a large media company in court. Keyboard Cat and Nyan Cat have joined forces to file a copyright and trademark infringement lawsuit against Warner Brothers Entertainment.

Alright, so it's obviously not the cats themselves that sued Warner Bros, or WB, but rather Charles L. Schmidt and Christopher Orlando Torres, the creators of the popular YouTube videos “Keyboard Cat” and “Nyan Cat,” respectively. The complaint, filed on April 22 at 4 p.m., argued that Keyboard Cat and Nyan Cat were used willfully and intentionally in four different “Scribblenauts” video games on the Nintendo DS without permission. The games were published by WB and developed by 5th Cell, which was also named in the complaint.

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Schmidt and Torres also claimed that Keyboard Cat and Nyan Cat were also used to promote and market the WB games, all without permission or compensation. WB even identified the characters by name.

Perhaps the best part of the official complaint is reading a legal description of Keyboard Cat and Nyan Cat:

"'Keyboard Cat’ is a video of Schmidt’s cat, Fatso, wearing a shirt and sitting upright with its paws on the keys of an electric keyboard, which Schmidt manipulated to make Fatso appear to be playing a tune,” states the court document, "‘Nyan Cat’ is a cartoon. Nyan Cat, a character with a cat’s face and a body resembling a horizontal breakfast bar with pink frosting sprinkled with light red dots, flies across the screen, leaving a stream of exhaust in the form of a bright rainbow in its wake.

So if you weren’t already familiar with the memes, there you have it. Just to clarify, Nyan Cat’s body is in fact a Pop-Tart.

While they may sound ridiculous -- and they certainly are -- the videos have been huge successes on the Internet. “Keyboard Cat” hit YouTube in 2007 and was one of the first Internet memes to reach mainstream attention. It has been featured in a Starburst commercial and ranked second place on Current TV’s list of 50 Greatest Viral Videos. “Nyan Cat” was the fifth most-watched YouTube video in 2011 and won the 2012 Webby award for Meme of the Year. Together, they have more than 120 million views on YouTube.

WB and 5th Cell used the Nyan Cat and Keyboard Cat characters, even identifying them by name, in the original 2009 “Scribblenauts” game, as well as in the game's three sequels. The case will be litigated in the Central District of California. 

Milord A. Keshishian, a copyright and trademark lawyer in California who wrote a blog post about this case, said it is highly likely to settle before trial.

“Defendants will probably attempt to attack the validity of the trademarks and copyrights or raise a fair use or First Amendment defense, which are all uphill battles if plaintiffs' allegations are true in that defendants licensed other characters,” Keshishian wrote the International Business Times in an email. “Defendants are more likely to attempt to limit damages by apportioning profits to the non-infringing elements in the overall game versus the limited appearances of the Nyan and Keyboard Cat characters.“

IBTimes reached out to WB for a statement and received the following response from Paul McGuire, WB's contact for corporate communications. 

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In case you have never seen the Keyboard Cat and Nyan Cat sensations, here they are: 

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