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The legal campaign to take Pepe the Frog back from the alt-right is now in California federal court as artist Matt Furie has filed a copyright lawsuit against InfoWars.
Furie says he created Pepe as a “peaceful frog-dude” at the beginning of the century with the catchphrase “Feels good man.” His anthropomorphic creation then became a meme on the internet, and was tweeted by Katy Perry, Nicki Minaj and Buzzfeed, among others.
“But beginning in 2015, various fringe groups connected with the alt-right attempted to co-opt Pepe by mixing images of Pepe with images of hate, including white supremacist language and symbols, Nazi symbols, and other offensive imagery,” states the complaint lodged in court Monday. “Furie has worked hard to counteract that negative image of Pepe, including collaborating with the Anti-Defamation League on the #SavePepe campaign to restore Pepe as a character representing peace, togetherness, and fun.”
The lawsuit pinpoints one poster in particular as a source of copyright infringement. The poster features Pepe alongside InfoWars founder Alex Jones, President Donald Trump, Milo Yiannopoulos, Ann Coulter, Matt Drudge, Roger Stone and others with the text “MAGA,” short for Trump’s campaign slogan, “Make America Great Again.”
Furie, represented by attorney Rebecca Girolamo at Wilmer Cutler, says he didn’t authorize such use of Pepe. He alleges the poster is being sold by InfoWars in its online store.
Should InfoWars attempt to argue fair use, the case could become provocative. Copyright law isn’t supposed to make value judgments. (See for example the time that Adolf Hitler’s “Mein Kampf” triggered a lawsuit.) But then again, the purpose and character of use as well as the effect of the use on the potential market are two of the four factors comprising a potential fair use.
In this case, Furie says he has licensed intellectual property rights for card games and stuffed dolls. Further exploration of the impact of political co-opting could be forthcoming. The lawsuit also notes that Donald Trump Jr. posted an image of Pepe in a modified version of a movie poster for the film “The Expendables” labeled “The Deplorables.”
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