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There will be no “Pepe the Frog” trial after all.
On Monday, Matt Furie, the creator of the anthropomorphic character, announced that he had obtained $15,000 from InfoWars in a settlement that resolves a copyright lawsuit. The deal comes weeks after a federal judge partially rejected summary judgment motions, setting the stage for what would have been a closely watched — and rather unique — copyright trial.
Furie filed his lawsuit in March 2018 with the contention that InfoWars had ripped off his character for a “MAGA” poster featuring Pepe alongside InfoWars founder Alex Jones, President Donald Trump, Milo Yiannopoulos and others.
By the time of the lawsuit, Pepe had already become an online meme, taken from the character’s roots of being a peace-loving frog to a symbol of the alt-right. Through his legal action, Furie aimed to reclaim the character.
The prospective trial had copyright experts watching closely.
For starters, while judges often decide the affirmative defense of fair use as a matter of law, U.S. District Court Judge Michael Fitzgerald thought a jury could best address the question of whether InfoWars had created new purpose as well as the effect on the market from InfoWars’ use, among other fair use factors.
The judge also left open the question of whether Furie had effectively abandoned rights by repeatedly telling media outlets that he was largely cool with how his popular anthropomorphic character had taken on a life of its own. Copyright abandonment is terribly rare, but here, public comments expressing ambivalence about others’ use potentially became significant. Some observers worried the ruling could lead copyright holders to crack down on the meme-ification of their works lest they lose rights.
Although those became the headline issues from the summary judgment ruling, a less noteworthy decision by Judge Fitzgerald may have ultimately been the one that determined the fate of the lawsuit.
The judge ruled out the recovery of statutory damages and attorneys’ fees given Furie’s delay in registering copyright on “Pepe.” That meant Furie could go to trial, but he’d only be shooting for about $14,000 in profits.
Instead, the settlement provides him with roughly that amount without the cost of doing trial.
Now, both sides can claim a victory of sorts.
For Furie, he can point to InfoWars’ agreement as part of the settlement to stop using Pepe and how the case sends a message to others. “InfoWars had said it planned to ‘free Pepe once and for all,’ but it backed down rather than face trial and lose,” says Furie attorney Louis Tompro.
As for InfoWars, its attorney Marc Randazza points to how the other side wanted $1.2 million in damages but settles for just a fraction of that.
Furie says he plans to give $1,000 to Save the Frogs!, a charitable organization at the forefront of amphibian conservation efforts.
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