Nyan Cat Copyright Case: Warner Bros. Sued

When the creators of two of the Internet’s most-watched video memes—Keyboard Cat and Nyan Cat—filed a lawsuit against Warner Brothers for trademark infringement and copyright infringement, the case raised questions that go to the heart of how copyright and trademark law applies to Internet meme culture. The plaintiffs, Charlie Schmidt (Keyboard Cat) and Chris Torres (Nyan Cat), alleged that Warner Bros. incorporated their famous meme characters into its Scribblenauts video game franchise without authorization or compensation.

The Memes: Background

Keyboard Cat is a 54-second video uploaded to YouTube in 2007 featuring a cat named Fatso—who died in 1987—playing a keyboard in what appears to be a performance. The original footage was shot in 1984 by Charlie Schmidt. The video became one of the original viral Internet phenomena, accumulating over 61 million views by the time the lawsuit was filed. Its derivative uses—”Play Him Off, Keyboard Cat” superimposed over fail videos—became a recognizable format across the Internet.

Nyan Cat is an animated GIF created by Chris Torres in 2011 featuring a pop-tart-bodied cat with a rainbow trailing behind it, set to a looping Japanese pop melody. The Nyan Cat video became one of the most viewed YouTube videos of its year, accumulating tens of millions of views and spawning countless derivative works, merchandise, and cultural references.

Together, these two videos had been collectively viewed over 245 million times when the lawsuit was filed—a level of cultural penetration that most professional media companies would envy.

The Scribblenauts Dispute

The Scribblenauts franchise—published by Warner Bros. Interactive Entertainment—features gameplay in which players type words to summon objects and characters into the game world. The game’s trademark feature is its vast dictionary of summonable items. The plaintiffs alleged that Warner Bros. had included both Keyboard Cat and Nyan Cat as summonable characters in Scribblenauts Unlimited and subsequent games without obtaining licenses from the copyright and trademark owners.

The inclusion of these characters in a commercial video game without permission or compensation is exactly the kind of unauthorized commercial exploitation that copyright and trademark law is designed to prevent. The fact that Keyboard Cat and Nyan Cat are Internet memes—rather than characters from a traditional media franchise—does not diminish their intellectual property protection.

Copyright Claims: Who Owns Keyboard Cat?

Copyright in Keyboard Cat flows through a specific chain. The original footage was shot by Charlie Schmidt in 1984—meaning the copyright was created by Schmidt at the moment of fixation. The copyright in the film is Schmidt’s, not Warner Bros.’ or any platform’s. The viral spread of Keyboard Cat on YouTube—and the millions of derivative uses—does not affect Schmidt’s underlying copyright ownership in the original video. The copyright owner alone has the exclusive right to authorize uses of the work, including incorporation into commercial video games.

This is a common misconception about Internet content: that viral spread, widespread use, or the meme status of content places it in the public domain or otherwise weakens the copyright holder’s exclusive rights. It does not. A video that has been viewed 60 million times without the copyright holder’s authorization has been infringed 60 million times—not licensed by viral popularity.

Trademark Claims: Characters as Source Identifiers

Both Schmidt and Torres asserted trademark claims in addition to copyright claims. Trademark protection extends to distinctive characters and images that consumers associate with a specific source. Under 15 U.S.C. § 1125(a), unregistered marks can be protected against commercial uses that create a likelihood of confusion about source, sponsorship, or affiliation.

The trademark theory is particularly important for meme characters because it provides protection beyond the original copyrighted expression—it protects the character’s identity as a source identifier for goods and services. A consumer who sees Keyboard Cat or Nyan Cat in a video game might reasonably assume that the game was licensed or endorsed by the character’s creator. That assumption—even if incorrect—creates the likelihood of confusion that trademark law is designed to prevent.

Settlement and Outcome

The case settled before trial on confidential terms. Settlements in intellectual property cases involving commercial media companies and individual creators typically involve licensing payments, royalties, and in some cases ongoing licensing arrangements for future use. The filing of the lawsuit itself sent an important signal to the entertainment industry: Internet content creators own their work, and incorporating meme characters into commercial products without license creates real legal exposure.

Lessons for Content Creators and Businesses

For content creators: your original work is protected by copyright from the moment of creation, and viral spread does not diminish your rights. Register your copyright early to preserve access to statutory damages and attorney’s fees. Consider trademark registration for distinctive characters or images that identify your creative output. And when commercial entities use your work without permission, legal remedies are available.

For businesses: clearing rights to content before incorporating it into commercial products is not optional. Internet memes, viral videos, and online cultural phenomena are owned by someone—and using them in commercial products without proper licenses creates copyright infringement and trademark liability. “It’s just a meme” is not a legal defense.

Revision Legal’s copyright and trademark attorneys advise both content creators seeking to protect their work and businesses navigating the rights clearance process for digital content. Contact us today for a consultation.