May 30, 2013 11:59am PT by Eriq Gardner
Grumpy Cat Gets Movie Deal: Wait, Do Animals Have Likeness Rights? (Analysis)
Last year, Bryan Bundesen posted pictures on the Internet of his sister's cat, Tardar Sauce. After the cable technician, who lives in Ohio, showed off the sourpuss feline to the world, a digital phenomenon commenced. "Grumpy Cat" was voted Meme of the Year at the 2013 Webby Awards.
Now, Grumpy Cat has an agent -- Ben Lashes, who represents other cats made famous online -- and has reportedly scored a movie deal with Broken Road Productions (Jack and Jill, Zookeeper, The Sorcerer's Apprentice). As the Wall Street Journal puts it, "This week, Mr. Lashes helped negotiate the sale of a film option based on Grumpy Cat's persona. … Terms of the one-picture deal weren't disclosed."
Too bad details of that contract haven't been released, because the film deal raises the provocative issue of whether animals really have likeness rights. Well, do they?
The right of publicity evolved from the right of privacy. In 1954, the noted (deceased) legal scholar Melville Nimmer articulated how a plaintiff might assert a claim based upon some commercial, unauthorized use of his or her identity. Notably, in his treatise, he suggested that likeness rights extend to animals, too.
Here's what Nimmer wrote:
"It is common knowledge that animals often develop important publicity values. Thus, it is obvious that the use of the name and portrait of the motion picture dog Lassie in connection with dog food would constitute a valuable asset. Yet an unauthorized use of this name could not be prevented under a right of privacy theory, since it has been expressly held that the right of privacy 'does not cover the case of a dog or a photograph of a dog.'"
Still, it doesn't appear that his view that famous animals should get publicity rights in lieu of the inability to protect their privacy has gained too much traction over the years.
Two years ago, the then-"rights-owner" of "Lassie" sued financial services firm J.G. Wentworth over a TV commercial that featured a dog racing through fields and forests to help out a family in trouble. The plaintiff alleged copyright and trademark infringement and unfair competition, but didn't bring any right of publicity claim. (The lawsuit was settled before any significant ruling.)
Then, last month, came a noteworthy new lawsuit.
The plaintiff in the case is a guy by the name of Charles Schmidt, who had made a video of his cat, Fatso. In the video Fatso, wearing a shirt and sitting upright at a keyboard, was made to look like he was playing a tune. The video went viral, and soon Keyboard Cat became a full-blown meme.
Now, Schmidt is suing Warner Bros. and 5th Cell Media, alleging that the studios have ripped off the meme in a computer game called Scribblenauts Unlimited. The complaint (read here) asserts that the Keyboard Cat meme is entitled to copyright and trademark rights. In the lawsuit, the plaintiff slyly points out, "The 'WB' logo also is a meme, even though it is only two letters inside the outline of a shield. Of course, WB employs an army of lawyers who use trademark and copyright law to zealously protect its intellectual property, including its logo."
The lawsuit doesn't include any direct likeness claim, although it does say that Schmidt -- who also happens to be represented by celebrity cat agent Ben Lashes -- didn't "authorize defendants to copy, reproduce, perform, or use Keyboard Cat or Fatso's image in any Scribblenauts game."
It remains to be seen how this case evolves and if a judge will see Keyboard Cat like a movie or TV show character. If so, the judge might analyze whether the character of the cat has highly delineated constant traits worthy of protection -- like, say Godzilla. Or perhaps Fatso can get the judge to discuss Internet memes in their own right. Just maybe the judge will refer to Nimmer's words on Lassie. Warner Bros. has yet to reply in the lawsuit.
In the meantime, Grumpy Cat has a movie deal. It likely includes a transfer of copyright and trademark rights, but does it also include rights over Grumpy Cat's persona too as if this feline was a celebrity like Cat Deeley, Kat Dennings, Chris Kattan or Jeffrey Katzenberg? We've reached out to Lashes for an answer and if we learn anything, we'll update.