A recent Ipse Dixit podcast episode featured the copyright litigation of Matt Furie, creator of the comic character turned alt-right symbol Pepe the Frog. Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law, interviewed Arthur Jones and Giorgio Angelini, creators of the documentary film Feels Good Man, and intellectual property lawyer Louis Tompros. They describe the character’s transformation and Furie’s legal actions, beginning with Pepe’s inception in the comic Boys Club.
Following Matt’s Myspace posting of Pepe saying “feels good man,” he began seeing his image on bodybuilding and mushroom forums. Anonymous imageboard 4chan’s users then took up Pepe’s image as a reaction meme in the early 2010’s. After the meme spread to other, less male-dominated media sites like Tumblr, Pepe was thrust into popular culture, culminating in use by artists Katy Perry and Nicki Minaj. 4chan’s users reacted to this phenomenon by sabotaging the character:
They begin kind of Nazifying Pepe or just kind of making Pepe so repugnant and creating such disgusting memes that their initial intent is really just to make the meme so toxic that people stop using it.
The unintended but perhaps foreseeable consequence of this action was for crypto (and not-so-crypto) fascists to exploit that use and the aggrieved imageboard users to make Pepe a trolling symbol of the alt-right.
When Furie saw an an Islamophobic children’s book use his character, he worked with Louis Tompros to divert the work’s proceeds to the Council on American-Islamic Relations Foundation through a settlement with the publishing company.
Furie and Tompros continued targeting bigoted, for-profit uses of Pepe, including far-right conspiracy website Infowars’ poster featuring the frog among other characters. Infowars owner Alex Jones claimed on air that his first amendment rights were being violated during the copyright infringement case, but he failed to win fair use in part because the poster’s price doubled on the website during the lawsuit with a message encouraging its purchase before it could be ‘shut down.’ The parties settled for more than Furie and Tompros were seeking.
Tompros mentions the relative ease with which they resolved the case. He felt if they had gotten past summary judgement to a trial with a jury, the egregious commercialization of the poster during the case and the moral outrage over the context of its use would mean easy victory.
It’s a fascinating case for a number of reasons. While nobody should lose sleep if Infowars takes a financial hit, taking legal action due to the message an expression (in this case, Pepe) is used to communicate as a means of harming the speaker does raise some First Amendment concerns. It’s also a telling case study to examine how not commercial, but psychological and ethical motivations, influence the desire to assert copyright.
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