On March 5th, artist Matt Furie, the creator of the Pepe the Frog anthropomorphic frog character that has gained notoriety for its use in Internet memes, filed a complaint for copyright infringement in the Central District of California. The suit targets a pair of companies managed by far-right conservative radio show host Alex Jones over the use of the Pepe character over the sale of a poster including a likeness of Pepe alongside political figures from the alt-right and the 2016 presidential campaign of Donald Trump.
As the complaint notes, Furie created Pepe in the early 2000s as a “peaceful frog-dude” and “blissfully stoned frog” living with three animal roommates in the online cartoon Boy’s Club. In 2008, Buenaventura Press published Furie’s Boy’s Club 2 which included a copyright page indicating that no part of the publication may be reproduced without the written consent of Furie or Buenaventura. Boy’s Club comics using the Pepe character continued to be published through 2016. Furie has also licensed the Pepe likeness for various merchandise including stuffed dolls as well as Pepe’s appearance in the “What Do You Meme?” board game.
In late 2015, Furie alleges that a campaign which started on 4chan’s online message boards resulted in the release of Internet memes which mixed the Pepe character with Nazi imagery and other racist and anti-Semitic themes. Other images posted online starting around this time began to create an association between Pepe and Donald Trump’s campaign for the U.S. Presidency. This includes a parody version of the movie poster for The Expendables, which was altered to read The Deplorables and made use of the Pepe likeness along with individuals associated with the Trump campaign, including Mike Pence, Rudy Giuliani and Chris Christie.
In September 2016, Pepe’s association with alt-right memes resulted in the Anti-Defamation League (ADL) adding Pepe the Frog to its list of general hate symbols. “The association of Pepe with symbols of hate and with the alt-right movement has been a nightmare for Furie,” the recently filed copyright suit reads. In October 2016, Furie partnered with the ADL to create a #SavePepe social media campaign in an attempt to reclaim the character from the alt-right.
At issue in this specific case is another poster sold on the Infowars website featuring Pepe alongside various conservative and alt-right political figures and commentators including Alex Jones, Matt Drudge, Roger Stone, Milo Yiannopoulos and Ann Coulter. Near the bottom of the poster is the wording “MAGA”, an acronym for Donald Trump’s campaign slogan “Make America Great Again.” The poster sells on the Infowars website for $17.76 and Furie’s complaint includes multiple reviews which “enthusiastically note Pepe’s presence in the photo.”
Furie’s complaint includes one count for copyright infringement and asserts federally registered copyrights to works including the Pepe character going back to 2003. Furie is seeking to recover either actual damages and lost profits in an amount to be proven at a jury trial, or, at Furie’s election, statutory damages which would be provided under 17 U.S.C. § 504(c), which could result in a damages award of up to $150,000 if it’s proven that the copyright infringement was willful. Furie is also seeking a permanent injunction under 17 U.S.C. § 502 enjoining defendants from committing future acts of infringement.
Furie has filed one other complaint for copyright infringement in U.S. district court. Last October, he filed a suit in the Western District of Missouri alleging infringement caused by an artist who also co-opted the Pepe likeness to create imagery associated with the alt-right which have been sold online under titles such as “Antifa,” “Donald Trump Pepe” and “Charlottesville.” A pro se answer filed by artist Jessica Logsdon a few weeks later asserting 16 affirmative defenses, including fair use and innocent intent, and citing a 2010 interview Furie gave to Know Your Meme and another 2015 interview with VICE Magazine in which Furie indicated that he was aware of widespread use of Pepe as a meme. This March, both Furie and Logsdon stipulated to the dismissal of the infringement claims with prejudice.