Internet Meme Copyright & Trademark Battle
The owners of two popular Internet memes, Keyboard Cat and Nyan Cat, have sued Warner Brothers (“WB”) and 5th Cell Media (“5th”) for unauthorized use of their memes in WB and 5th’s video game series known as Scribblenauts. Memes are all over the internet – I’ll bet there are some on your Facebook timeline right now – so why are they suing over this particular use? Who can and can’t use a meme, and who needs permission to do so?
The lawsuit defines as meme as:
…a communication of ideas or information and can be in any format–words, an image, a design, a video, a cartoon, or anything else through which information can be communicated. Frequently memes consist of copyrightable creative works or trademarks. Successful memes “go viral” and can reach hundreds of millions of consumers and become sought-after marketing tools.
In short, we’re talking about those funny images or videos that seem to endlessly bounce around the Internet.
The memes in question are Nyan Cat:
…and Keyboard Cat:
The game is Scribblenauts, a puzzle-solving game that involves writing words, after which those objects appear on the screen…OK, you caught me, I haven’t played the game, but my understanding is that, in the version of the game that’s the subject of the lawsuit, if you write “Nyan Cat,” Nyan Cat will appear and help you solve the puzzle. And so on for several other popular memes.
The owners of the Cats claim that WB and 5th did not ask them for permission to use those memes and that they have received no revenue from their use in the game. They are suing for infringement of the copyright and trademark rights embodied in the memes.
Memes, like any other images (or videos), are copyrightable works. If you take a picture of your cat, you own the copyright in that picture. If that picture ends up becoming an Internet sensation, you are still the copyright owner. If the memes are used in connection with goods or services, they may also be protected as trademarks.
But wait, you say, how is it that I see these pictures all over the Internet? Christopher Torres, owner of Nyan Cat, explains in his Tumblr:
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.
This is a wise approach. Torres recognizes that the commercial value embodied in Nyan Cat only exists because of its Internet popularity. As long as you continue to spread the meme without seeking a profit, he will not go after you, even if you are technically infringing on his intellectual property rights by doing so. And, from a legal perspective, you probably are.
OK, now we understand: just because something is a meme doesn’t mean that nobody owns it. In this case, both Cat owners have sought and obtained Federal copyright and trademark registrations in their respective memes and have actively pursued licensing deals. Allowing WB and 5th to use their memes in a commercial product without permission arguably diminishes their licensing value.
Or, arguably, it increases it, just like every other use of the memes increases their licensing value…I suppose you could see it from either direction. But if everybody can use the memes for free, then there is no licensing value, because nobody has to pay a licensing fee.
The moral of the story is that meme owners have to go after some people who use their images without permission, but not – by far – all who do. In this case, at least one of the targets is one of the world’s largest media conglomerates, so they don’t appear to be the most sympathetic defendant. Some commentators appear to have taken issue with the plaintiff’s approach in this case, but my sense is that the Cat owners have chosen their target wisely.
