Matt Furie, the creator of Pepe the Frog, sued Alex Jones’ Infowars last month. The conspiracy-minded site is selling a poster which features the cartoon frog. Furie and his lawyers want it gone, but Infowars hasn’t relented and there’s a chance Furie and Infowars will go to court. In that case, the artist will ask for damages from the website for violating his copyright.
It’s been six months since Furie went to war against the far right against their use of his creation, Pepe. So far, he’s winning. Through his lawyers, Furie told Motherboard he will enforce his copyright against anyone who seeks to use Pepe to spread hate and make money. In response, members of the far right vowed to defend their right to shitpost their favorite mascot. Furie has settled three lawsuits and scared dozens of other websites and personalities into submission with cease and desist letters and Digital Millennium Copyright Act (DMCA) notices.
Infowars is proving to be one of the more resistant. After Furie’s lawyers notified the site of the pending suit, it raised the price of the poster from $17.76 to $29.95. “There's only a few hundred left on this final run,” the store description of the poster reads. “We'll be forced to take it down forever when we run out, so make sure you get this collectible poster today!”
Typically, the only damages a defendant seeks in a copyright claim case are the profits the infringing party earned using the copyrighted material. “There are some instances in which you may be entitled to more,” Louis Tompros, one of Furie’s lawyers, told Motherboard over the phone. “For example, if the infringement is willful. If there were some indication that the infringer knew what they were doing was infringement and continued after having notice from us. That could be considered willful and result in an increase in the damage amount.”
Furie’s lawyers noticed Infowars boosting the Pepe poster after receiving their letter. “There’s an argument that their actions have been willful, for sure,” Tompros said. “I think their actions speak for themselves and we’ll seek all appropriate remedies." Motherboard reached out to Infowars for comment and did not receive an immediate response.
In an audio clip uploaded to YouTube, Jones claimed the lawsuit was frivolous and would be thrown out of the courts. “The poster is political art, it’s transformative...it’s completely and totally protected by the First Amendment of the United States Constitution,” he said.
Furie’s campaign against the far right’s use of his creation began in earnest last August, after an educator in Texas self-published an anti-Islamic book starring Pepe. The book won the educator internet fame and a publishing deal with Post Hill Press. Then Furie brought the legal hammer down and got the book pulled and its meager profits turned over to the Council on American-Islamic Relations, a Muslim civil rights and advocacy group.
On April 3, Furie settled his most recent lawsuit against Arktos Media Ltd, which published Dissident Dispatches: An Alt-Right Guide to Christian Theology. The book featured Pepe on the cover dressed up as the pope. According to a copy of the settlement obtained by Motherboard, the publishers have changed the cover and agreed to release its meager profits—just $1,586.84—to Furie within seven days of the effective date of the agreement.
Furie’s team of lawyers, from the firm Wilmer Cutler Pickering Hale and Dorr LLP, includes Stephanie Lin—who drafted that agreement—and Tompros. “We said after this first action against [the educator] that Matt was taking a stand here and that people should be on notice that he was going to enforce his rights against anyone who was using Pepe in connection with any kind of hateful messages,” Tompros told me over the phone.
WilmerHale’s strategy is simple—comb the internet for people making money off of Pepe, then send them either a cease and desist letter or a DMCA takedown notice. “For the most part, when we give notice, most of the entities involved have….realized this is a losing fight for them,” Tompros said. “They’ve very quickly capitulated and agreed to take offending material down.”
Prominent white nationalist Richard Spencer’s website, for example, used Pepe as the logo for its podcast. Now the frog is nowhere to be found. “[Spencer’s] organization never responded to our cease and desist letter but immediately took down the offending podcast logo,” Tompros said. “So they did exactly what we asked.”
Anthime Gionet, the far right personality better known as Baked Alaska, fought a little, then relented. He was selling a book with Pepe on the cover as well as a mobile game that featured Pepe helping to build a wall on America’s southern border. “We had some back and forth, but he agreed to stop selling the book with Pepe on the cover and to keep the app down,” Tompros said. “There’s no formal settlement agreement in place, but we got exactly what we asked for.”
The Texas educator, Arktos Media Ltd., and an artist who was selling Pepe paintings on eBay all backed down when the situation got serious. With the artist, WilmerHale filed a formal complaint and requested a jury trial, but they reached a settlement before it got that far.
Tompros said the team at WilmerHale and Furie are in this for the long haul. “Matt has every intention of making sure that no one is ever using his character or his images in connection with messages of hate and thinking they’re going to be able to make a profit off of it,” he said. “There’s no planned end date.”
After the initial round of cease and desist letters, posters at places such as r/the_Donald and /pol/—fringe political hangouts on Reddit and 4chan respectively—threatened to go after Furie and the lawyers. Tompros said it hasn’t affected them much. “There’s a lot of online attacks against Matt, against our firm, against our lawyers,” he said. “We knew that that would be coming...and are willing to deal with it.”
“The good news is that it seems to be working,” Tompros said, adding that there are fewer far right Pepes for sale on the internet today. “We’re going to keep on going.”