It seems as though two of the internet’s most famous cats have found themselves at the center of a lawsuit against media giant Warner Brothers and the video game developer 5th Cell Media. On April 22, 2013 Charles Schmidt, creator of the rather well known “Keyboard Cat” video, and Christopher Orlando Torres, creator of the oh-so-catchy “Nyan Cat” viral video, brought suit against Warner Brothers and 5th Cell alleging claims of Copyright Infringement, False Advertising, Trademark Infringement, and Unfair Competition under the California Business and Professions Code for use of the cats in the Scribblenauts line of video games without asking for pur-mission (I promise I’ll do my best to limit the cat puns).
What has many people up in arms though, is that a meme draws its lifeblood from the continual reproduction and sharing of the meme. Without widespread dissemination, a film clip, image, or gif cannot become a meme and achieve the underlying meaning that gives the meme its identity. Because of the nature of a meme, many are claiming that Schmidt and Torres are bringing a frivolous lawsuit against WB and 5th Cell. However, as content creators, Schmidt and Torres have the right to be compensated for commercial uses of their work.
What is a Meme?
The idea of a meme actually goes much farther back to well before the presence of the internet. A quick Wikipedia search shows that a meme is a method of communication. It is a unit for carrying cultural ideas between people using text and pictures. In the case of the internet, these memes can generate very quickly and spread even faster because of the instantaneous nature of the communication between people.
Modernly, memes generally refer to internet memes and describe the pictures, videos, and gifs that permeate the internet. Common examples of pictorial memes include Success Kid, Foul Bachelor Frog, Scumbag Steve, and Good Guy Greg. Each of these memes carries subtext that someone unfamiliar with the meme would miss.
For example, the meaning behind the Scumbag Steve meme boils down to the idea of “with friends like this, who needs enemies.” This meme has evolved from a picture of “Scumbag Steve” with text over the picture, to merely placing the iconic hat of “Scumbag Steve” on almost anything to suggest that “this person or thing says one thing, but does another.” This meme has been used to poke fun at anyone and anything from oblivious boyfriends to actions taken by the President of the United States of America.
Video memes are very similar and include Keyboard Cat, Nyan Cat, and the unforgettable “Rick Roll” of Rick Astley’s “Never Gonna Give you Up.” While these videos may not be as constantly edited as the pictorial memes listed above, these video memes take on their own cultural significance and convey underlying messages and meanings. For example, if a person were to click on a link that was supposed to be something very interesting to them and they found themselves on a page with a charming ginger man promising to never run around or desert them, then general consensus is that that individual had been had. Almost like a modern day prank phone call.
Usage of Memes in a Commercial Setting
As mentioned above, a meme becomes a meme from its continued use and distribution amongst those in the culture. It is through this continuous usage between individuals that the meme obtains its significance. This means, in the internet context, that a meme truly lives once it has passed hands numerous times.
But what happens when a meme is used for more than jokes and conveying messages? What happens when individuals try to capitalize on the fame and notoriety that some memes have gained? At that point, it only seems fair that if the individual who created the meme can be identified and located they should receive part of the money being earned from their meme. This is not to say that memes should be limited in their dissemination, as their notoriety and usage is what gives the memes life. However, if individuals are making money off of another’s work, the creator deserves a slice of the pie.
There are a number of issues that need to be cleared if an advertising individual desires to use a meme in a commercial manner. The first, and seemingly most obvious, would be to check government records for either copyrights or trademarks covering the meme. As internet memes have gained popularity, so has the desire to legally protect the memes that have been created. Most recently, the newer meme of Grumpy Cat has sought trademark protection in January of this year. Whether or not people morally agree with the legal protection of memes, it is a fact of our legal system that memes can merit protection. By looking into the government records, the advertiser can see not only if the meme is protected, but also determine who the party is that they must contact regarding the licensing of the meme.
Even if there are no records of copyright or trademark applications, it is still possible for an author of a work to recover from an individual who uses their work without permission. In general, even if a trademark or copyright is not on file with the United States Patent and Trademark Office or Copyright Office, that does not mean it is without protection. It is then in the advertiser’s best interest to try and determine who the author of the meme is. This can be a problematic step as memes are so frequently created and edited to reflect current topics. However, at the very least some kind of internet search will likely put an advertiser on notice of whether or not the meme has one discernible author. There is even a website called “Know Your Meme” that is dedicated to describing the history and creation of some of the most popular memes that would provide a good start for a researcher.
Finally, one of the biggest things that a person who wants to use a meme for a commercial purpose needs to be aware of is that generally, memes are derived from pop culture references. This means that the underlying material that the meme creator used may itself be subject to some sort of legal protection. The clearest example of this is the Futurama Fry meme. In this meme, a picture of Phillip J. Fry from the amazing television show Futurama is shown with his eyes squinted stating something that he is not sure about. Now out there, somewhere among the internet, there is an author who created the first Futurama Fry meme. However, simply getting this author’s permission would be insufficient to utilize the Futurama Fry meme as the creators of Futurama have copyright protection, and likely some sort of trademark protection, covering the character of Phillip J. Fry. These creators would also have to give permission to use the meme, not just the creator of the meme itself.
Should These Cats Bring Suit?
The question on internet users’ minds then is not whether or not Schmidt and Torres can maintain a suit against WB and 5th Cell, but rather should they. Given that memes are inherently social constructs that are meant to be passed along and changed, yet still convey an emotion or feeling, should the creators of such a thing be upset when someone uses their creation? In this case, I think the answer is yes and I think that both Schmidt and Torres are justified in maintaining a suit against WB and 5th Cell.
First off, from a strictly legal standpoint, Schmidt and Torres have legal protection. There are copyrights and trademarks either registered or pending registration for both “Keyboard Cat” and “Nyan Cat.” While the timing of the registrations may present issues to the recovery of the parties, it does not negate the protections that such registrations are afforded. The law is on their side and the original creations of both “Keyboard Cat” and “Nyan Cat” should be protected.
But more importantly, Schmidt and Torres are entitled to an award in this instance because the use of their memes was for commercial purposes. There have been no reported instances of either Schmidt or Torres going after anyone for using their memes in everyday meme use, that is, passing the memes around between internet users with no inherent monetary value. Further, both owners have a history of licensing out their memes. Schmidt had licensed out “Keyboard Cat” to be used in a Starburst commercial while “Nyan Cat” has a slew of officially licensed merchandise. This shows that both Schmidt and Torres are no strangers to the business surrounding their memes and neither is the public at large. If the Wrigley Company is able to secure a license for the use of “Keyboard Cat” in their Starburst commercial there is no reason that Warner Brothers should not be able to do the same.
Further, WB’s actions in not securing a license suggest that they believe they are free to bypass the legal system that they have so passionately fought for and worked with. Just because Schmidt and Torres are smaller content creators does not mean that they should be afforded any less protection than large scale content creators like WB. And infringement of a content creator’s creation carries with it penalties that must be paid.
Avoiding a Cat-tastrophe
It will be interesting to see how this suit plays out, though if I had to put my money on it a case like this is likely to settle rather quickly for an undisclosed amount. It is unlikely that this suit will bring any revolutionary changes to the legal framework surrounding memes and copyright laws. WB and 5th Cell will want to settle this down as quickly and quietly as possible before these cats get too far out of the bag. OK, one too many cat puns. I’ll see myself out.