In fact, Starburst previously featured the Nyan Cat in one of its commercials. This case’s outcome might unravel new concerns for businesses that often use memes in their marketing strategies. The case raises a series of questions about memes and IP law. Keyboard Cat, however, might have difficulty claiming damages since its copyright was not registered until after the alleged infringement. § 504(c), the owner of Nyan cat could possibly receive statutory damages, attorneys’ fees, and costs since its copyright was registered a year before the meme appeared in Scribblenauts. The owners allege that Warner Brothers used their memes without their permission and claim they are entitled to damages. Charles Schmidt created the Keyboard Cat back in 2007 after he posted a minute-long video of a cat playing 80s-esque music on the piano while chanting “meow.” Both memes are copyrighted and the newfound popularity prompted the owners to seek trademark protection.
Nyan cat, created by Christopher Torres, is “a character with a cat’s head and a body like a Pop Tart that sails through the air leaving a rainbow trail.” The meme has its own website and You Tube video, the latter which has received nearly two billion hits. The unique memes have received astonishing popularity since their creation. Despite Warner Brothers’s avid advocacy against IP misappropriation, the company reportedly snubbed meme owners, forcing them to get their claws out and file suit for copyright and trademark infringement. The legal trouble arose when Warner Brothers included two renowned Internet memes in its library: the Nyan Cat and the Keyboard Cat.
In 2009, Warner Brothers (WB Games) and 5th Cell released the best-selling Scribblenauts, a video game where players solve puzzles to collect “Starites.” Players can either use their imagination and introduce their own objects into play or select from the provided objects in the game’s library. In the video game world, it seems like there’s a new case of the pot calling the kettle black.
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