Alex Jones’s Pepe the Frog Copyright Trial Will Help Decide Who Can Use Memes

Are memes fair use? Or can you be sued for sharing and profiting off them?

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May 17 2019, 6:04pm

Image: Andrew Harrer/Bloomberg via Getty Images

Pepe the Frog is officially going to trial.

Last year, the creator of the cartoon frog, Matt Furie, sued conspiracy theorist Alex Jones and his company Infowars for allegedly violating his copyright. Jones was selling posters with Pepe looming in a sea of headshots involving controversial figures—including Roger Stone and Donald Trump—from the 2016 election.

Jones and his lawyers tried to get the case thrown out, arguing that Infowars’ Pepe posters were fair use. According to court documents obtained by Motherboard, the US District Court of Central California rejected Jones’s argument and both Furie and Jones will face off in a California court before a jury this July to decide Pepe's fate.

The case is actually important, because it will help answer some questions about the legal rights that meme makers retain after their images have been transformed and after they go viral. If Jones is forced to pay damages, it also could threaten meme culture more broadly, which often relies on remixing and sharing copyrighted images.

"[Infowars] argues that the nature of Pepe the Frog is 'somewhat unique,' because the character 'took on a life of its own' when it became a meme," the judge wrote. "Defendants argue that the 'meme-ification of the character' was widespread and far different than how Pepe the Frog was depicted in the comics, weighing in favor of a finding of fair use. At the hearing, Defendants reiterated that the nature of Pepe the Frog changed dramatically once the character became 'meme-fied' and numerous third parties began using the character."

Jones also argued that Furie had abandoned his copyright on Pepe, citing interviews from New York Magazine, The Atlantic, and The Daily Dot where Furie discussed the alt-right’s use of Pepe and a comic where he killed him off.

“It’s just out of my control, what people are doing with it, and my thoughts on it, are more of amusement,” Furie told The Atlantic in 2016. Jones used this quote as part of his argument to dismiss the case.

“Defendants point to public statements that suggest—or at least can be reasonably viewed as suggesting—Pepe the Frog was out of Plaintiff’s control and was ‘killed’ as a character,” court documents said. "Defendants note that [Infowars] used an image of Pepe the Frog drawn by a third party, rather than one drawn by Plaintiff. [Infowars] also made 'alterations to the shading, the shape of the mouth, the pupils, and the texture to make it look more naturalistic.'"

The court rejected Jones's reasoning and said a jury needed to decide the case. “It is particularly appropriate for the jury to determine [Furie’s] intent, whether he was ‘sarcastic’ in making some of these public remarks, what he meant when he said that he ‘killed’ Pepe the Frog, and numerous other factual disputes,” court documents said.

Jones is the last remaining defendant in a series of lawsuits Furie filed in the past few years. Furie was famously hands-off with the cartoon frog, but started to enforce his copyright claim after a Texas educator released an Islamophobic children’s book starring Pepe in 2017. At the time, far-right media personalities were selling Pepe-branded merchandise and Furie served them with cease-and-desist letters.

The legal threats scared most away from appropriating Pepe, leaving Jones as the lone holdout who vowed to fight for free speech and fair use.

“Mr. Furie is pleased that the court rejected Infowars’ attempt to avoid a jury trial,” Louis Tompros, one of Furie’s lawyers, said in an email. “He looks forward to having his day in court to hold Infowars accountable for its willful and bad-faith copying of Pepe the Frog.”

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