Pepe the Frog has gone from a relatively obscure cartoon character to an icon of the alt right. The use of Pepe’s likeness in a poster for sale on the far-right conspiracy website Infowars prompted Pepe’s creator, Matt Furie, to sue for copyright infringement.
The case will go to trial after a motion for summary judgment was denied. The outcome of the case remains uncertain, but despite its rather absurd fact pattern, it makes for an interesting copyright infringement case study. First is the originality of Pepe itself, which could make Furie’s copyright invalid right out of the gate. According to the ruling:
The character El Sapo Pepe is an Argentinian anthropomorphic frog that has existed since at least 1988, and shows featuring El Sapo Pepe were broadcast in Argentina and other “Central American” (presumably Latin American) countries since at least that time.
While there’s a strong visual resemblance, the same could be said of virtually all cartoon frogs. The name Pepe itself is also derived from the common name José. And, as long as the defendants can’t prove that Furie’s brief time in Mexico (or access to the internet in general) exposed him to Pepe, it seems the validity of the copyright will likely stand.
Second is whether or not the use of the poster constitutes fair use. There are a number of different standards used to determine fair use, the most relevant is how “transformative” a work is–how different it is from the original work. Defendants pointed out that there were some changes to the physical appearance, but their stronger argument for the transformative nature of the work is the context of the poster:
As to contextual differences, Defendants argue that “Pepe the Frog is only one of 12 faces in the MAGA [p]oster, and is one of the least prominent figures in it, taking up only a small percentage of the total poster.” Defendants note that Pepe the Frog is depicted as one of many “political figures and alternative media members,” far removed from his original context in the comics. At the hearing, Defendants reaffirmed the highly transformative nature of Pepe the Frog because their use was complementary to Plaintiff’s use of the original character. [Citations omitted].
On the one hand, while it’s quite clear that it’s Pepe in the picture, his placement in the picture as one of many in this far-right rogue’s gallery, the stylistic changes, and the context of the poster as an essentially political piece suggests a significant transformation. Additionally, Pepe is a smaller part of a larger picture, and not the center of it himself (as he is with other memes).
Third is whether or not Furie intentionally forfeited his copyright:
Plaintiff made numerous statements to various media outlets that “he was happy about Pepe the Frog becoming a meme, that he was not bothered (and was in fact inspired) by rampant unauthorized use of the character, that he was aware of third parties making a profit off these unauthorized works but did nothing to stop them, and that he had lost control over the character.”
The defendants argued that this was a forfeiture of his copyright, but it’s pretty clear from the comments that Furie was merely stating his amusement that people were using his content, not that he wished to surrender his rights to it. If the defendant’s analysis were correct, Michael Scott would have been able to successfully declare bankruptcy.
Based on Furie’s previous statements and behavior, it seems clear that his objection to the memefication of Pepe stems from its appropriation by the Alt Right. Any decent person would also be deeply upset if this happened to them. Because questions like fair use, particularly how “transformative” a work is, vary case-by-case, the outcome of the lawsuit is uncertain.
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