This Is the First Copyright Infringement Lawsuit Filed Against a Pepe Meme Maker
The defendant will suggest to a federal court that her appropriation of Pepe is protected on "religious grounds as a Kekistani."
Image: Shutterstock / Composition: Jason Koebler
Matt Furie's lawyers have made good on their promise to pursue legal action against alt-righters profiting from his now-infamous creation, Pepe the Frog. On Tuesday, his lawyers sued Kansas City artist Jessica Logsdon in US District Court for the Western District of Missouri.
Logsdon creates oil paintings with political themes and over the past year has generated a lot of Pepe-related content, which she sells on Ebay. Furie's law firm, Wilmer Cutler Pickering Hale and Dorr, hit Logsdon and others with cease and desist orders and DMCA takedowns last month in a series of legal moves meant to help Furie wrest control of Pepe away from the alt-right and others who would profit from him.
Right-wing online personalities such as Mike Cernovich and Baked Alaska generally complied with the takedown notices, but Logsdon fought back. Square hosts Logsdon's website and WilmerHale sent a takedown notice to the provider to get the artist to remove the offending Pepe's from her site. In response, Logsdon sent a counter notice to her provider, claiming she was within her legal rights to use the Pepes. That action triggered the lawsuit, according to Furie's lawyers.
"The only option available to us to stop her infringing activity was to bring a case in court," Louis Tompros, a lawyer who represents Furie, told me via email. "Whether the parties ultimately try this case to a judge or a jury is something that will be determined later...What [Furie] wants is to make sure that nobody is using Pepe in connection with hateful messages, and that nobody is profiting from that use. We are open to a settlement, assuming it involves at least Logsdon admitting infringement, turning over profits, and agreeing to stop making and selling infringing works."
The 118-page lawsuit (embedded below) is a whirlwind ride through the last 18 months of American politics. "Logsdon offers for sale a copy of Pepe the Frog which she named
'Alt-Right'...and another work entitled 'Pepe Patrol,' featuring an image of Pepe
pointing a machine gun over a wall labeled 'US Border,'" the lawsuit said. "According to Logsdon's Twitter feed, @USARTStar, she claims to have sold oil paintings featuring Pepe the Frog, including one called 'Antifa' depicting an image of a masked Pepe holding a machine gun in front of what appears to be the White House...and another with Pepe making an 'OK' sign with his hands below—a gesture associated with the alt-right."
Logsdon, for her part, said she is not a member of the alt-right. "I am a painter, not the least alt-right," Logsdon told me on Twitter after I first reported the Pepe-related cease-and-desist letters in September.
"Nope. No chance. Frivolous lawsuit," she said in another tweet, and posted a screencap of a tweet she'd sent to WilmerHale. "I understand what it feels like to be afraid. Dark alley, group of lawyers stumble up. They don't like my art so they rape me."
Court filings showed that someone purporting to be Logsdon took to 4chan's /pol/ community days before sending this tweet to talk about her situation, and promised to fight the lawsuit on all fronts. The post invoked "Kek," the the name of an Egyptian god with a frog head that has become synonymous with "meme magic" among various 4channers, Redditors, and other members of Trump's "meme army."
"[Furie] has a high-powered law firm pursuing me for painting Pepe," the person claiming to be Logsdon wrote on /pol/ on September 17, according to the lawsuit. Though 4channers generally post anonymously, the person posting on 4chan posted using Logsdon's name and uploaded letters from WilmerHale as well as Logsdon's response, in addition to original artwork from the case, which had not been posted elsewhere online.
"I am planning on fighting this on many fronts, but most important among them is that I am exercising my religious freedom as a Kekistani," the post continued. "Of course I have not mentioned this in my official response as I do not want to play my cards...we all know that KEK is real, that meme magic is real, and that the Old Order is extremely threatened by the manifestation of KEK in the modern world. This is the further manifestation of that fear."
The poster is talking about meme magic, an at-times-kind-of-seemingly-serious-sounding occult belief popular among the alt-right. According to believers, constantly shitposting Pepe memes during the 2016 election cycle manifested the will of the shitposters and elected Donald Trump. Kekistan is the fictitious nation-state for the alt-right meme magic makers; the Kekistani are its citizens.
On September 20, Logsdon mailed WilmerHale a Pepe oil painting, according to Tompros and the court filing. "The painting featured Pepe hugging an American flag and the text 'SHH,' 'NO TEARS,' and 'ONLY MEMES NOW,'" the lawsuit reads. "The painting was not accompanied by any note or other explanation."
"We were surprised," Tompros told me via email when I asked about the painting. "It is certainly an unusual response to a cease-and-desist letter to send one of the infringing products to copyright owner's lawyer, without any explanatory letter."
WilmerHale wants Logsdon to stop posting Pepe on her website, and to stop selling her oil paintings on Ebay. They're also pursuing damages and the profits Logsdon has already made from her meme magic masterworks. The artist claims she was never in it to make a profit.
"I was not painting Pepe to make $$$, at all," she wrote on /pol/. "It costs me money to sell my memes...I was not on social media so I was selling my art at $0.99 plus shipping cost in order to reach an audience. The end user pays for internet the same way an analogue meme consumer pays for shipping."
As of this writing, Logsdon's paintings are still up on Ebay for $0.99 plus $37 for shipping. The artist tweeted at me in mid September, but did not respond to my request for comment on this story.