The creators of Nyan Cat and Keyboard Cat are suing Warner Bros (WB) over the use of their memes in the Scribblenauts series of games.
Clockwise from top: Ceiling Cat, Ninja Cat, Tacgnol, Longcat, Keyboard Cat and Nyan Cat in Scribblenauts Unlimited.
(Screenshot by Michelle Starr/CNET Australia)
As early as 2009, Warner Bros was hiding memes as Easter eggs in Scribblenauts — one of which was Charles Schmidt's Keyboard Cat, (real name "Fatso") popularised in 2007 and trademarked in 2010, in the original 2009 Scribblenauts, 2010's Super Scribblenauts and 2012's Scribblenauts Unlimited.
Nyan Cat, created by Christopher Orlando Torres and trademarked in 2011, joined the meme stable in 2012 for Scribblenauts Unlimited.
Both creators are suing Warner Bros for copyright and trademark infringement, having not given the publisher permission to reuse their intellectual property.
"For the past three years, Warner Bros, along with game developer 5th Cell, have knowingly and intentionally infringed plaintiffs' copyrights and trademarks by using Nyan Cat and Fatso's image in WB's top selling Scribblenauts games," the complaint reads. "Compounding their infringements, defendants have used Nyan Cat and Keyboard Cat, even identifying them by name, to promote and market their games, all without plaintiffs' permission and without any compensation to plaintiffs."
Torres first became aware of the use of Nyan Cat in Scribblenauts Unlimited when he saw his creation in the debut trailer for the game. However, despite attempts to resolve matters amicably, Torres said in a blog post, Warner Bros and 5th Cell snubbed both himself and Schmidt.
As Torres also pointed out, the games make a point of telling you in the tutorial that copyrighted, non-licensed material cannot be created in-game — and that 5th Cell did in fact get licensing for several Nintendo characters.
"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," he said. "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."
Both creators are seeking triple damages, punitive damages and legal costs. As Schmidt didn't have a trademark on his creation for the original Scribblenauts game, he may not receive damages for that part of his suit.
CNET Australia has contacted Warner Bros for comment.