Pepe The Frog Creator, Infowars Both Claim Victory After $15k Copyright Settlement

from the croak dept

A little over a year ago, we discussed Matt Furie, the creator of the Pepe the Frog character that became an alt-right meme sensation, suing Infowars for selling posters featuring his character. That post was fraught with subtle takes, frankly, largely the result of Furie's wishy-washy history over how he protected his creation, or not, and the fact that the other side of the story was Infowars. Infowars is of course a conspiracy-mongering lie-factory run by play-acting assclowns that make gobs of money by getting followers to harass the parents of dead children and then selling those same followers merchandise and diet pills.

A better description of the hellscape that is 2019 cannot be found.

Still, Furie's decision to sue Infowars despite his previously being cool with people making memes out of the Pepe character made it clear that his reason for suing was a moral one, in that he didn't want Pepe to be used alongside hateful content. Copyright, meanwhile, is meant to be deployed on economic grounds, making this all quite murky. On top of that, meme culture could be threatened by these types of actions, all over a moral dispute that really has no place in terms of copyright enforcement.

Well, in keeping with the theme, Furie's moral dispute has resulted in a moral victory of sorts, with Infowars agreeing to settle out of court for $15k and both sides claiming victory. First, the facts on the settlement.

Infowars was forced to pay $15,000 in a settlement to the creator of Pepe the Frog, a cartoon amphibian who had been co-opted as a meme by right-wing internet users, after selling a poster that featured the character on its website.

Per Furie's side of the equation, the paltry sum was by design. Furie has stated publicly through his lawyers that this wasn't meant to be a money grab. Instead, it was meant to deter other groups that would seek to re-purpose Pepe for hateful speech. This, again, is simply not the purpose of copyright law. Furie can be permissive with the image being used by some and restrictive for others, but the fact that copyright law allows this is a bug and not a feature.

Infowars, meanwhile, is spinning this as a complete victory due to the small amount of money in the settlement.

Infowars claimed a “strategic victory” for Jones, calling the sum a “tiny settlement” in a release posted on the website. Infowars lawyer Robert Barnes said in a statement: “Happy to announce the folks suing Infowars over Pepe the Frog have agreed to settle, and accept a licensing fee of $15,000.”

Barnes said: “They thought we wouldn’t fight. They thought we wouldn’t win in court. They thought wrong.”

How truthful you think Infowars is being in labeling this as any kind of victory aside, the fact that it can put out statements like this undercuts the moral argument question to at least some degree. If Furie's purpose in using copyright law to claim a moral victory rested on deterrence, Infowars' statement sure doesn't send the kind of message that will result in deterrence at all. Instead, the copyright lawsuit almost looks like a pass-through cost.

As for Furie's side, even the victory lap his lawyers took makes it clear that this is all about a moral stance.

“For the last year or so we’ve been playing this game of Whack-a-Mole using cease-and-desist letters and the Millennium Copyright Act,” Tompros explained. “Memes are sort of new and the internet spread of memes are certainly a recent phenomenon, but at the end of the day, the copyright principles are reasonably easy to apply in this context, as long as you’re thinking about it precisely and carefully.”

“Matt (Furie’s) going to enforce his copyrights aggressively to make sure nobody else is profiting off associating Pepe the Frog with hateful imagery,” Tompros said.

Except that doesn't really do the job, does it? Unless Furie wants to expand his Pepe war on non-commercial uses, much of which would likely be protected Fair Use, the hateful imagery is absolutely going to continue. Dancing in the end zone by claiming that commercial uses will heretofore cease seems like the hollowest of victories.

So what was all of this for? A tiny settlement awarded to a creator that didn't like how his content was being used in some instances with the defendant claiming a strategic victory. It's hard to see how that isn't a waste of everyone's time.

Filed Under: alex jones, copyright, fair use, matt furie, moral rights, pepe
Companies: infowars

Copyright, Censorship, Pepe & Infowars

from the all-mashed-together dept

If you're reading this, you're probably well aware of Pepe the Frog, the cartoon character created by Matt Furie years ago that turned into quite the meme by the 4chan crowd. Over time, the meme morphed into one favored by Trump supporters and the alt-right (though, upset that Pepe has become too "mainstream," that crowd has moved onto something of a derivative work known as Groyper). As you may have heard, Furie has now decided to sue Infowars over a poster the site is selling that puts together a bunch of... well... the crowd of people you'd expect to be fans of Infowars and Pepe.

The lawsuit, which you can read in its entirety, claims copyright infringement -- and it's raising a whole bunch of issues concerning memes and copyright that seemed worth exploring.

To do this, though, I actually find it useful to go back in time a bit, and explore Furie's changing attitude towards what became of Pepe. Back in the summer of 2015, when Pepe was still a big meme, but not quite one associated with racists, Furie gave an interview with Vice, in which he made it clear that he was pretty chill with what had happened with Pepe.

I don't really see it as being something that's negative. It's this almost post-capitalist kind of success. I'm not making any money off of it, but it's become its own thing in internet culture. Now, at least, a lot of people make a conscious effort to go out and try and create that kind of meme success, where you're doing these little one-off characters, little gags, little gifs, and that's definitely your intention. I'm just flattered by it. I don't really care. I think it's cool. In fact, I'm getting kind of inspired by all the weird interpretations of it. I wanna use it to my own advantage and try to come up with comics based on other people's interpretations of it.

Later in that same interview, he even gives his opinion on people profiting off of Pepe, and again doesn't have much of a problem with it:

It's like a decentralized folk art, with people taking it, doing their own thing with it, and then capitalizing on it using bumper stickers or t-shirts. That's happening to me too. There is a tradition of it.

He even admits to having "a little collection of bootleg Pepe stuff."

A year or so later, once Pepe had been adopted by the alt-right, Furie still appeared pretty laid back about the whole thing, while making it clear that he, in no way, agreed with the alt-right. But he saw their usage of the meme as a sort of fascinating look at internet culture:

My feelings are pretty neutral, this isn’t the first time that Pepe has been used in a negative, weird context. I think it’s just a reflection of the world at large. The internet is basically encompassing some kind of mass consciousness, and Pepe, with his face, he’s got these large, expressive eyes with puffy eyelids and big rounded lips, I just think that people reinvent him in all these different ways, it’s kind of a blank slate. It’s just out of my control, what people are doing with it, and my thoughts on it, are more of amusement.

He similarly noted that he expected this was just a phase that would fade out over time:

I think that’s it’s just a phase, and come November, it’s just gonna go on to the next phase, obviously that political agenda is exactly the opposite of my own personal feelings, but in terms of meme culture, it’s people reapproppriating things for their own agenda. That’s just a product of the internet. And I think people in whatever dark corners of the internet are just trying to one up each other on how shocking they can make Pepe appear.

And towards the end of the interview, he's asked if he has any regrets about "not having more control over his image" and Furie responds:

I don’t have any regrets about anything. I do my own thing, and if anything, it’s been kind of interesting to see all the evolutions of Pepe. Yeah, no regrets.

A month after that interview... Furie's opinion appeared to shift somewhat. In reading how he dealt with it, it certainly appears that Furie more or less got annoyed with everyone asking him about this and/or asking him if he supported the views of the alt right (and more annoyed with their views becoming mainstream as well), and he decided to take action. His initial instincts were to create a new Pepe comic that certainly expresses his opinions on having his own creation adopted by Trump and Trump supporters, and then tried to take back the meme with a sort of anti-meme #SavePepe campaign. Again, this is an interesting move, switching from a passive position of "that nutty internet" to one where you're fighting memes with memes.

It took another year or so, to last summer, when it appears Furie finally got really fed up with the whole alt-right Pepe thing, and began dispatching cease and desist letters and some DMCA takedowns from a big name law firm. Some news was made when the author of a hateful Islamophobic book using Pepe as a main character agreed not to publish the book, and to donate the $1,500 he had made from an earlier self-published version to the Muslim civil liberties group, the Council on American-Islamic Relations.

And that takes us up to the Infowars lawsuit. It would not surprise me at all to see Infowars cave and settle the case quickly to get it done with. While I think there's a passable fair use argument here, it's so mixed up with political emotions, if I were Infowars, I wouldn't feel at all comfortable having a judge make a ruling on it, let alone a jury. As I've noted in the past, while some cases are clearer than others, fair use is one of those ones where judges can twist the four factors test in all sorts of ways to reach the outcome they'd prefer -- and Furie is definitely a lot more sympathetic here than Alex Jones. So, while I can see the fair use argument, and don't think it's a crazy argument at all, it's certainly not a slam dunk in an actual courtroom.

What's much more interesting (and bothersome) to me is that for as much as I understand Furie's decision and anger over how this all turned out, it's yet another example of how copyright is frequently morphed into a tool for censorship of ideas, rather than what copyright is actually supposed to be. Copyright is an economic right. The entire purpose was to secure the limited exclusive rights to the copyright holder for the sake of economic benefits. For the most part (with a few small exceptions) the US has rejected using copyright for "moral rights." Yet, this is, quite obviously, a case where Furie and his lawyers are using it as a quasi-moral rights tool. He's (quite reasonably!) upset with what Pepe has become (even if he was cool with it originally) and is now using the tool of copyright to stop that.

Even if it's a legit copyright claim that would hold up in court, the overall situation should trouble folks, because it's not what copyright is supposed to be used for. Using copyright to stop someone from infringing is supposed to protect purely the economic issues, rather than the moral ones. Yet Furie's statements and actions (including getting previous bootlegs and declaring it a cool thing) show that this lawsuit is very much about the moral issues and his desire not to allow those with political views he vehemently disagrees with, to use his character. And I can certainly understand why he'd feel that way -- but that's not what copyright is supposed to be used for. And this is the problem we've discussed in the past of "copyright creep." Because copyright is such a powerful tool to stop speech, it is often used that way. And even if the claim would hold up here, the motives behind the use of copyright are clearly not within the intended realm of copyright law. And that's worrisome.

Either way, I still expect Infowars to settle this rather than fight it (I think they'd be crazy not to...), and I completely understand the reason why Furie may not be happy with the whole situation -- but I worry about more and more stories of copyright being used directly to stifle speech, not for any economic reasons, but for purely censorial reasons.

Filed Under: alex jones, censorship, copyright, economic rights, matt furie, memes, moral rights, pepe
Companies: infowars