Scribblenauts' inclusion of Nyan Cat and Keyboard Cat lands creator in trademark lawsuit (update)

Scribblenauts developer 5th Cell and publisher Warner Bros. are named in a trademark infringement suit for the series' inclusion of Nyan Cat and Keyboard Cat, according to a complaint recently filed by the memes' respective creators.

Charles Schmidt, who uploaded Keyboard Cat's breakout performance to YouTube in 2007, and Christopher Orlando Torres, who made the quickly viral Nyan Cat animated GIF, jointly filed a copyright and trademark infringement suit against the two companies. Both felines can be conjured up in-game using protagonist Max's magic notebook, but their cameos were not cleared with Schmidt or Torres, the suit claims.

Keyboard Cat has appeared in all Scribblenauts titles released throughout the franchise's history, while Nyan Cat only appeared in Scribblenauts Unlimited, the latest game in the series. The damages sought by Schmidt and Torres sound fairly substantial, but are not explicitly outlined by the brief; the total royalties would be dependent on an accounting of the Scribblenauts' series sales and total revenue.

We have reached out to 5th Cell for a comment on the pair's claims.

Update: Torres issued the following statement to Eurogamer:

We reached out to the companies in hopes of working out an amicable resolution of the issue, yet were disrespected and snubbed each time as nothing more than nuisances for asking for fair compensation for our intellectual property. That's not right. 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. But this is a commercial use, and these companies themselves are protectors of their own intellectual property. Many other companies have licensed Nyan Cat properly to use commercially.

In Scribblenauts Unlimited, you have to actually type out the words "Nyan Cat" and "Keyboard Cat" to get our characters to appear in the game. In fact, the game forbids you from making any copyright references in their games with a pop-up error. Meanwhile, 5th Cell recently negotiated proper rights for several Nintendo characters for their games. Just because popularity with millions of fans has caused Nyan Cat and Keyboard Cat to become famous by virtue of their viral or meme nature, doesn't give these companies a right to take our work for free in order to make profits for themselves, especially considering too that they would be the first to file lawsuits against people who misappropriate their copyrights and trademarks. It just isn't fair. I've been working alongside with the creator of the music and the lady who uploaded it to YouTube since the start. There are many reputable companies that have respected our rights and negotiated fees to use our characters commercially. Warner Bros. and 5th Cell should have done the same.

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. 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.