Can Matt Furie reclaim “Pepe the Frog” from the alt-right? Or does the artist’s long acquiescence to the meme-ification of the anthropomorphic character mean he’s effectively abandoned his ability to stop others from using “Pepe”?
These questions will be front and center at a rather peculiar copyright trial currently set for July after a California federal judge Thursday night ruled on summary judgment motions that certain issues would have to be tested in front of a jury.
Furie is suing Alex Jones’ InfoWars after the right-wing site co-opted “Pepe” for a MAGA poster that was sold on its website. The poster features “Pepe” alongside Jones, President Donald Trump, Milo Yiannopoulos, Roger Stone and others.
“Pepe,” whose signature catch phrase is “feels good man,” first appeared in Furie’s 2003 comic book, Play Time, and then made appearances in a series of other comic books from Furie, who described the character as a “chill frog dude.”
The artist didn’t seek copyright registration until September 2017. By that time, “Pepe” had already become an Internet meme. By 2014, famous celebrities such as Katy Perry and Nicki Minaj began featuring “Pepe” in social media posts and there was not much indication that Furie would fight to protect his creation from exploitation. He told the media throughout the years that Pepe “took a life of its own,” and in one interview, stated, “I believe in supporting people’s decisions to profit off of Pepe in order to provide them with the most positive business experience possible.”
He later claimed that the comment was sarcastic.
Once white supremacists and the alt-right began using “Pepe” during the 2016 presidential election, however, Furie wasn’t so chill about how his creation had become seen as a “hate symbol.” The lawsuit filed by Furie, represented by attorneys at Wilmer Cutler, amounts to a test case for the reclamation of “Pepe.” It will almost have to be a lawsuit that’s motivated by nonfinancial reasons. Given Furie’s delay in registering copyright on “Pepe” and how InfoWars’ alleged infringement predated his registration, U.S. District Court Judge Michael Fitzgerald has ruled out the recovery of statutory damages and attorneys’ fees. Furie can still go after actual damages such as profits (about $13,000) or diminished licensing ability, but the cost of litigating this battle is very likely to outweigh any financial recovery for Furie from InfoWars.
A copyright case that’s grounded in the sociopolitical times is just one feature that makes Furie v. InfoWars a prospectively unique trial.
There’s also the issue of abandonment, which is an affirmative defense to copyright infringement that is very rarely invoked. Instead, abandonment — whether the intellectual property owner intentionally relinquishes enforcement of rights — is more commonly associated with trademark law. But it can come up in copyright law. See, for example, how abandonment came up in the legal fight to put “Happy Birthday to You” into the public domain. Fitzgerald points to the decision in the “Happy Birthday” case as precedent for the surrender of a copyright via a statement to the press.
Both sides in this case argued over whether Furie’s statements to the media amounted to sufficient evidence that he had abandoned his copyright.
“Defendants point to public statements that suggest — or at least can be reasonably viewed as suggesting — Pepe the Frog was out of Plaintiff’s control and was ‘killed’ as a character,” writes the judge. “Plaintiff points to other public statements where he reaffirmed his ownership over Pepe the Frog, suggesting no intent to abandon the character. The dispute is therefore more appropriately left to the jury rather than determined by the Court on summary judgment.”
Once this case gets to trial, a jury will also be deciding whether the selling of a poster that included “Pepe” was de minimis or fair use. The fact that InfoWars, represented by attorney Marc Randazza, used “Pepe” in a commercial matter certainly bears on the analysis of the four factors that govern a fair use. Nevertheless, the judge won’t rule out that the MAGA poster’s use of “Pepe” was transformative. As for the nature of a copyrighted work, Fitzgerald also notes that no authority has been pointed to for the proposition that the meme-ification of a character diminishes an original author’s copyright interest.
The judge wants the “fair use” question resolved at trial.
He writes, “Stepping back from the factors, the argument at the hearing by counsel for Defendants was, essentially, that controversial defendants should not have their defense of fair use decided by the jury; i.e., there must be some sort of First Amendment overlay on copyright law to protect political speech. By analogy, counsel was arguing for the creation for copyright law of something like New York Times Co. v. Sullivan for the law of defamation. That simply is not the law as this Court understands it.”