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Me:

What is the license under which you publish the nyancat animation?  Would creative commons/cc-by-sa be suitable as a re-use license?

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Chris:

Hello there!
The Nyan Cat image is not creative commons, and is in fact both copyrighted and trademarked by me. Did you have any licensing inquiries for it's use?

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Me:

We (that is, the community involved with the game) would like some kind of official permission to use Nyancat (or rather, its likeness) in a free, open source video game as an object which can be found and collected under very rare circumstances. The game is LGPL for the code and CC 3.0 for the imagery therein, hence my suggestion of that license.

Very small portions of the Nyancat image (small enough to qualify under US fair use guidelines) are already being used, but as I said it's quite rare to find it (rare enough that it almost may as well not exist).

I don't want to give the name of the game as I don't want to get its authors in trouble.

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Me:
(after a few days of no response)

I never received a reply to my latest email regarding using Nyancat in a non-commercial game.  Just wondering if it got lost or deleted or what.

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Chris:

 If you would have approached me
in less of a "I don't want to give the name of the game as I don't want to
get its authors in trouble." and "Very small portions of the Nyancat image
(small enough to qualify under US fair use guidelines) are already being
used" way I would have been more accepting of this, but I feel very
disrespected since you don't have a good grasp on how copyright usage
works and think that just by moving some artwork around and hiding your
game's name as protection you can get away with being as vague as possible.

Some quick googling of your e-mail address and "minecraft ripoff" pulls up
the Minetest game, which you think you're so clever to hide, and this video:

http://www.youtube.com/watch?v=d8pN4VGepXQ

and Minetest Wiki pages:
http://wiki.minetest.com/wiki/Nyan_Cat
http://wiki.minetest.com/wiki/Nyan_Cat_Rainbow

(and much more)

I think we (and my copyright attorney) can all agree that this does NOT
fall under fair use, since this game is using my exact artwork extremely
blatantly. My Nyan Cat artwork is protected under U.S. Copyright
Registration Number VAu001063390 and pending trademarks 85357643 and
85576370 and I'd like to formally ask that any trace of my image be
removed from that game immediately, or further action may be taken to protect my copyright.  Thank you for cooperating.

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Me:

Well my intent surely wasn't to offend.  I just wanted to ask about licensing it.  I might have even been willing to pay a reasonable fee on the game author's behalf just to make sure it's legal.  Nevertheless, I mentioned US Fair Use based on the following factors (in the same order as found in the official US Copyright Fair Use Guidelines):

1. The purpose of the use of this image is to provide a silent, inanimate, static object that players can search for and perhaps brag about if found (like earning a medal, owing to how rare the object is).  Once collected, it does nothing whatsoever and serves no useful purpose.

2. The original depicts a unique entity for which no free replacement exists that conveys the same meaning.  Therefore, it is impossible to replace.

3. The game uses three static non-animated 16x16 pixel portions from one frame of the original image, which have been redrawn to some extent to suit the the cubes used by the game.

4. It is being used in a non-commercial capacity, in a free video game that does not, in any way, shape, or form affect your ability to sell merchandise bearing the Nyancat image or related trademarks.

Furthermore, US Trademark law requires you to protect your trademark lest you lose it, but only when it is being used in the same general market, and only when it is being used as some kind of advertisement, promotion, identification of a specific product, that sort of thing.   If you had been more diligent, you would have already come across Minetest, the forums, etc. and would have to the conclusion that Minetest is not in the same market as Nyancat (or even remotely close).  Therefore, your trademark claim in this matter is invalid.

> works and think that just by moving some artwork around and hiding your
> game's name as protection you can get away with being as vague as possible.

I withheld the game's name because I expected exactly the tone found in the email to which this reply is directed.

Had you asked for the name, I'd have gladly provided it.

> Some quick googling of your e-mail address and "minecraft ripoff" pulls up
> the Minetest game, which you think you're so clever to hide, and this video:
>
> http://www.youtube.com/watch?v=d8pN4VGepXQ

That video depicts a free, non-commercial, interpreted (scripted) third-party add-on which is not in any way, shape, or form connected to the author of the game.  If memory serves, that addon doesn't even work with the current game engine.  The author of this add-on is not a US citizen.

Since you looked up my email address, you have surely also noticed that the only contributions I have made to the game are in the form of add-ons, all of which use either my own code and imagery not derived from any other source, or images and code derived from free, open-licensed sources.  In other words, every line of code and every byte of media that I put in my mods is legal.

> and Minetest Wiki pages:
> http://wiki.minetest.com/wiki/Nyan_Cat
> http://wiki.minetest.com/wiki/Nyan_Cat_Rainbow

Indeed you are correct, but as you can see these images merely depict the block shape in which the Nyancat is used.  See above regarding fair use claims (for the purposes of commentary or education in this particular case).

Also, as you saw, there is a rainbow block meant to invoke the "crapping rainbows" as you so eloquently put it in your original description of the Nyancat, however you can surely agree that the portion used is not exactly a unique image.  As you well know, copyright does not cover simple images of this nature (had it not been the common 6 colors found in virtually any rainbow graphic, then it would matter).

Besides, had you completed your research, you would have also found out that the game is not only not mine, but that the author of the game is also not a US citizen.

I requested licensing terms on his behalf because I *am* a US citizen, as are you apparently, and thus am well aware of my rights as such.  I had assumed we could come to some mutual agreement.  Instead, you have resorted to legal threats and intimidation.

> I think we (and my copyright attorney) can all agree that this does NOT
> fall under fair use, since this game is using my exact artwork extremely blatantly.

Your artwork is being used in an item that is so rare that most players would never even see it if they didn't look at the game's source code and examine the images used therein (i.e. the texture files).  "Blatant" would seem to imply using it as a form of advertisement, promotional material, product identification, etc.  Clearly, that is not the case here.  It's just one more random object in the game, the rarest one in existence.

I invite you to share this email with your lawyer, since you are clearly speaking in the future tense here.  I do not find legal threats even remotely intimidating.

If you show any of my emails to him, you are hereby directed to show them in their entirety.  That is, in their uncut, unedited forms as received and displayed to you by your email program.

I have a feeling that your lawyer will tell you that my claims are just and valid, and that this isn't worth pursuing, beyond reasonable licensing terms.

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Chris never responded and I chose not to continue.