Internt memes, by their very nature, are vessels for reappropriation. Philosoraptor isn’t that funny the first time you see it; the humor comes when a meme creator successfully fulfills the parameters of the meme–banal and/or profound observational humor, setup on top, punchline on the bottom–which evolve as the meme propogates and is remixed. But that open-source nature–the very thing that makes them interesting and valuable–also puts them on legally shaky ground. As Andy Baio puts it at Waxy: Who owns a meme?
Two meme-makers are about to find out. Christopher Torres, creator of the original Nyan Cat GIF (but not the song, or the name, or the YouTube video, or the website), and Charles Schmidt, owner of Keyboard Cat and uploader of the original Keyboard Cat video (but none of the remix videos that popularized the meme) are suing the creators of a game called Scribblenauts, which incorporates the names and likenesses of both kitties along with a slew of other memes.
Plaintiffs accuse Warner Bros and 5th Cell of including, without any licenses or authorizations, the Keyboard Cat and Nyan Cat characters in their original Scribblenauts videogame released in 2009, the 2010 Super Scribblenauts, 2011 Scribblenauts Remix, and the 2012 Scribblenauts Unlimited. Defendants are accused of shamelessly using identifying “Nyan Cat” and “Keyboard Cat” by name to promote and market their games. Plaintiffs claim that Warner Bros and 5th Cell’s trademark infringement was willful and intentional and are requesting an award of treble damages and requesting the case be deemed exception under 15 U.S.C. § 1117(a), thereby entitling Plaintiffs to an award of reasonable attorneys’ fees.
Without the help of remixers and appropriators, neither of these guys meme’s would be notable enough to even be included in the game (they wouldn’t even be memes). But Scribblenauts is backed by Warner Bros–a company that’s likely making a good pile of money from the game and a far cry from a dude making Keyboard Cat videos in his basement.