Pepe the Frog creator Matt Furie and his legal counsel have successfully stopped many who would profit from Pepe’s likeness. Far right figures such as Baked Alaska, Mike Cernovich, and Richard Spencer all stopped using Pepe once Furie’s lawyers at Wilmer Cutler Pickering Hale and Dorr LLP served them with cease and desist letters and Digital Millennium Copyright Act notices. Even neo-Nazi site The Daily Stormer scrubbed Pepe from its website rather than go to court.
But Infowars—home to conspiracy theorist Alex Jones—is going to fight. WilmerHale sued Infowars and Free Speech Systems LLC (FSS)—the company that handles Infowars’ online storefronts—on March 7, 2018 after Infowars refused to remove a poster featuring Pepe the Frog from its online store. In court documents answering the charges FSS filed on July 12, Infowars revealed how it plans to fight for its alleged rights to use the cartoon frog.
Because of the way copyright law works, Infowars has to lay out its planned defense in writing before going to trial. We know from its court filings, it plans to build a case around a fair use argument.
“The use of Pepe’s head is a commentary upon the significant impact of using a meme that contributed to the highly improbable election of Donald Trump,” the court filing said. “Graphical historical commentary has a longstanding Western tradition, ranging from the Bayeux Tapestry, to using thumbnails of Grateful Dead posters to chart the band’s cultural history. ‘Meming’ is transformative, as it comments upon key insights using graphics, an increasingly preferred means of communication, as readers move away from text. Love him or hate him, the transformed Pepe was a historical factor in the election. The poster graphically answers the question, ‘who caused the election of a TV-personality with a 12% chance of winning?’”
FSS and Infowars began selling the poster after the election. It features a cast of the different media personalities associated with the President such as Roger Stone, Milo Yiannopoulos, and Pepe the Frog. “The right-of-center commentators shown are also unapologetic for their views and advocacy, as was the candidate himself,” the filing said.
The poster originally sold for $29.95, but FSS changed the price to $17.76—a reference to the year America’s founding fathers signed the Declaration of Independence—after WilmerHale filed suit and asked shoppers to buy the poster to help support its legal fight against Furie. “‘Help support Infowars in the fight for free speech, AND get a high quality limited edition MAGA poster at InfowarsStore.com,” the description of the poster at the Infowars store said.
The core of Infowars’ argument is that its use of Pepe is transformative and clearly defined under fair use, that Furie had repeatedly, and publicly abandoned the copyright, and that, even if they had violated the copyright, they did so innocently and without malice. That may seem like a string of conflicting defenses, but Louis Tompros—one of Matt Furie’s lawyers—said it’s fairly common in cases such as this. “This is not surprising to me. It’s fairly typical,” he told Motherboard over the phone. “Any defense that they don’t raise in their answer is waived so they have to assert everything they might go forward on.”
In the court filings, Infowars explained the transformative nature of its meme. “This transformative commentary is striking by the subtle and incongruous background placement of Pepe’s anthropomorphic frog image juxtaposed with humans and American iconography,” FSS lawyers wrote. “While some may find the posing of a frog alongside humans, and the retaining of a key attribute of the original Pepe, ‘[my support of Trump] feels good, man,’ to be amusing, a commentary need not be amusing to qualify as a parody. Pepe’s transformed use is an implicit rebuke to post-moderns placing subjective feelings as the highest value in selecting a candidate.”
“While I’m skeptical that Infowars will prevail on either of these defenses, they do have some intuitive appeal,” Ethan Jacobs, an intellectual property lawyer with Holland Law LLP in San Francisco told me via email. Jacobs pointed out that the Pepe meme is widespread and Pepe is just one figure in a sea of faces.
Jacobs noted that Infowars claim that its use of Pepe is transformative political commentary is shaky. “If applied generally, those two reasons would strip copyright owners of control of their characters whenever someone put them on a poster with a political message or created a meme,” he said. “I doubt the court will embrace either reason on its own as qualifying Infowars’ use of Pepe as fair use.
But Jacobs said he can’t reject the argument out of hand. So many people have politicized and memed Pepe in the past few years that it might sway a tech savvy judge or jury. “Is it now fair use to make a poster that depicts Pepe as a symbol of the people who use him as their mascot, alongside other real-life supporters of Donald Trump?” Jacobs said. “That framing makes this an interesting issue.”
On the abandonment issue, Jacobs thinks Infowars’ argument is weaker. “Copyright holders don’t have any obligation to enforce their rights to keep them,” he said. “Copyright holders are allowed to selectively enforce their copyrights, stopping some people but not others from using their work. And placing a work in the public domain—giving up your own rights to it—is difficult to accomplish when you’re trying to do it; it’s unlikely that a court will find Furie did it accidentally by making some unguarded comments in interviews.Tompros and the team at WilmerHale aren’t worried either. “We’ve looked at everything [Furie’s] ever said and we don’t feel there’s any kind of abandonment. We’ve made very clear that in numerous prior public statements Matt asserts his copyright interest in the character and images and that he plans to enforce them. Anybody who looks around reasonably at what’s been going on cannot say that there’s been any abandonment of the Pepe the Frog copyright.”
As of this writing, Infowars has not requested the charges be dismissed. Instead, it’s demanding a jury trial to settle the matter as well as a change of venue. WilmerHale filed the original lawsuit in California, the state where Furie lives and one where Infowars reaches a wide audience.
It won’t be the first time Furie and Pepe have gone to court. In early March, around the same time WilmerHale filed the Infowars lawsuit, it also settled a lawsuit against a Kansas City, Missouri artist who was selling Pepe paintings on Ebay. WilmerHale had served the artist with cease and desist letters, but refused but settled in civil court before the lawsuit went to trial.
Infowars did not respond to our request for comment.
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