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Warner Brothers Hit with Copyright Infringement Suit

Photo by Amy T. Zielinski/Getty Images(NEW YORK) -- Copyright holders of some popular online cat images claim media giant Warner Brothers swiped their cat images then refused entreaties to pay for them.

Warner Brothers has been slapped with a copyright infringement suit for their “unauthorized use” of two popular YouTube cat characters.

The suit is “Nyan Cat” and “Keyboard Cat” vs. Warner Brothers and 5th Cell Media, the makers of WB’s Scribblenauts puzzle action video game series. The claim is that the games released for Nintendo and PC platforms have, without consent, featured the likeness of Orlando Torres’ “Nyan Cat,” a flying cartoon cat with a Pop-Tart body and rainbow trail, and Charles Schmidt’s “Keyboard Cat” video, which shows his cat, Patso, propped up on a keyboard made to look like he’s playing a song.

“When Chris Torres, the creator of the Nyan Cat meme, found out that Warner Bros. put his character in its newest Scribblenauts game, Scribblenauts Unlimited, without his permission, he says he tried to negotiate with the entertainment conglomerate.

“Warner Bros. called him a nuisance,” Stephen D. Rothschild, attorney for Torres and Schmidt, told ABC News. ”Warner Bros. did the same thing with Charles Schmidt’s creation, the Keyboard Cat meme—put the character in Scribblenauts Unlimited and earlier Scribblenauts games without permission.”

Professor Shyam Balganesh with the University of Pennsylvania Law School told ABC News that he sees this suit as an interesting case of role reversals.

“When the public thinks of copyright today, it’s often big corporations as plaintiffs going after individual copiers and users,” said Balganesh. “This is an instance of that being reversed. Copyright’s excessive litigation costs have been a major deterrent for smaller plaintiffs.

“This is a welcome instance of individual plaintiffs willing to take that chance and go after a big corporation that used their works.”

Balganesh also said that he thinks Torres and Schmidt do have a “good case.”

“Looking at the two designs, I would say that the Nyan Cat clearly implicates both the reproduction right and derivative works right in equal measure,” he said. “The Keyboard Cat, however, was converted from video to cartoon, and likely implicates the derivative works right more than it does the reproduction right. I think the plaintiffs do nonetheless have a good case for the Keyboard Cat as well.”

The attorney for the plaintiffs said that this could have all been avoided had the game makers just gone about using these cat characters in the way other brands and media companies have. Rothschild told ABC News that both “Nyan Cat” and “Keyboard Cat” have been used with permission to market brands including Vitamin Water, Nike, Old Spice, Sprint, Starburst Candy, and Google.

A spokesperson for Warner Brothers told ABC News that the company has no comment on this legal case.

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