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Free Minds & Free Markets

Pepe the Frog Meets the Copyright Cops

When alt-right activists adopted this amphibian as their own, were they stealing a cartoonist's property or exercising free speech?

Know Your MemeKnow Your MemeArtist Matt Furie created Pepe the Frog, but it was stranger corners of the Internet that honed the laid-back amphibian into a general-purpose meme, complete with what may be the most bizarre fictional backstory ever compiled for a cartoon character.

Katy Perry cemented Pepe's claim to Internet stardom in 2014 by tweeting a picture of Pepe crying. Another pop star, Nicki Minaj, followed suit a few weeks later. In October 2015, a presidential candidate named Donald Trump made Internet history by retweeting a Trumpish version of the frog. Pepe also was adopted as a mascot by less mainstream groups: the alt-right, the neo-Nazi website The Daily Stormer, and some less easy-to-characterize participants on 4Chan's and Reddit's message boards.

Pepe became the Internet's favorite non-feline animal meme because of the humble croaker's endearing plasticity. He could be reshaped into any necessary sentiment. Wendy's fast food restaurants invoked Pepe; so did the Russian embassy in London in an attempt to poke fun at British Prime Minister Theresa May.

At first, Furie encouraged Pepe aficionados to expropriate his creation. In 2015, he told The Daily Dot that he not only endorsed 4Chan's renditions of the frog but wanted other artists "to profit off of Pepe":

It is my job to help 4chan have the experience that they want without judgment or criticism. In the end, I want 4chan to feel they were supported by being heard, respected, and part of the decision-making process. Instead of promoting my own agenda, it is my goal to promote 4chan. Different things work for different people. Let me support you in the way you choose to draw Pepe….I believe in supporting people's decisions to profit off of Pepe in order to provide them with the most positive business experience possible.

In 2016, asked by The Atlantic what he thought of Pepe being "adopted by the so-called alt-right," Furie replied nonchalantly that: "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."

Within a year, something changed. Perhaps it was a drumbeat of news reports tying the cartoon frog to white supremacists—reports helped along by teenaged trolls using fake identities. Or perhaps it was the left-leaning law firm of Wilmer Hale choosing to represent Furie for free. Whatever the reason, a legal campaign soon began. Threats or takedown requests went out to Reddit, Richard Spencer's AltRight.com, alt-right figure Baked Alaska, right-wing provocateur Mike Cernovich, Google Play, and Amazon.com, asking them to stop misappropriating Pepe. In October 2017, Furie sued a Missouri artist who drew original Pepe-themed artwork, alleging copyright violations. (They settled out of court.) He sued Alex Jones' Infowars.com for selling a poster that included an image of Pepe next to Donald Trump, Milo Yiannopoulos, and Ann Coulter. Earlier this month, The Daily Stormer agreed to remove all images of the comic frog.

"From our client's perspective, the message that he wants to make clear is that Pepe the Frog does not belong to the alt-right," Wilmer Hale partner Louis Tompros has told the ABA Journal.

It's zealous advocacy, but the law is another matter. Furie indisputably owns the copyright to the original Pepe comic strips that he drew in 2005. But fair use is a defense to other claims of infringement. The fair use test used by courts in copyright lawsuits weighs the purpose and character of the use, the nature of the work, the amount used in relation to the work as a whole, and the effect of the use on the potential market for the artist. All elements of that test appear to favor the Internet's remix culture, not Furie.

A handful of posters or artwork for sale aside, Pepe imagery is typically posted as part of non-commercial political or cultural expression. The effect on the commercial market for officially licensed Pepe images is negligible. If anything, Internet fame may increase demand for the official frog.

Free speech attorney Marc Randazza, who's representing Cernovich, says the frog can't be recaptured. "I believe things can be memed into the public domain," Randazza told Reason late last year. "You can take a whole bunch of already created works, and when you take them all together and then you blow new life into that and a new thought is expressed, you probably have engaged in what's called fair use." He says Pepe fits the bill.

Parody, including commercial parody, is constitutionally protected. In 1994, the U.S. Supreme Court decided a case where the copyright owner of Roy Orbison's song "Oh, Pretty Woman" sued the rap group 2 Live Crew over their song "Pretty Woman." Unlike 4Chan meme contributors, 2 Live Crew intended to profit from their parody, which explicitly copied lyrics and music from the original.

The Supreme Court decided in favor of 2 Live Crew unanimously. "Parody has an obvious claim to transformative value," the Court ruled. "It can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one....Parody, like other comment or criticism, may claim fair use....Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use."

A few years later, the U.S. Court of Appeals for the Second Circuit considered whether an advertisement for the immortal film Naked Gun 33 1/3: The Final Insult violated the copyright of photographer Annie Leibovitz. The ad recreated Leibovitz's 1991 Vanity Fair cover, which showed a naked photograph of the actress Demi Moore, who was pregnant at the time. In Paramount Pictures' version, the pregnant body had the face of actor Leslie Nielsen superimposed. Though the parody was commercial in nature, the court sided with Paramount.

Furie's original Pepe cartoons are rarely copied; rather, the frog's likeness is independently redrawn in a parody of the original. The original Furie-created Pepe is said to be a stoner, playing video games and eating pizza, with a catchphrase of "feels good man." If transforming that chill frog into a goose-stepping Nazi isn't parody, what is?

If Furie filed a trademark claim, that would have more stopping power. But the Patent and Trademark Office's online database shows that Furie's trademark to Pepe the Frog, with a first use in 2005, was "abandoned" in October 2016 and is now listed as "dead." Crucially, 2016 was when Furie took a laissez-faire view toward amphibian memes. By the time that Wilmer Hale stepped in to provide free lawyering against the alt-right, it was too late.

Once you donate your creation to the Internet, the Internet may not want to give it back.

CORRECTION: This article initially identified Pepe's original catchphrase as "be nice man." That was, in fact, a much later innovation.

Photo Credit: Know Your Meme

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  • Shirley Knott||

    So, does he weigh in on Elon Musk and the unicorn farts?

  • Chipper Morning Baculum||

    That's a clear rip off by Musk.

  • Half-Virtue, Half-Vice||

    When alt-right activists adopted this amphibian as their own

    The kids are laughing at you man. Literally everyone under the age of millennial uses this image; Gen Z is the only hope we have left.

  • Zeb||

    It is pretty hilarious what people will fall for.

  • Chipper Morning Baculum||

    Like actually buying and drinking IPAs?

  • Oli||

    Depends on the context. On mainstream social media it's a pretty distinct alt-right identifier.

  • Rockabilly||

    Who comes after Gen Z?

    It's the end of the alphabet, would it go to numbers or maybe Gen AA?

  • SRoach||

    Gen Smiley. Only renderable in Unicode. (Their grandparents will know of them as gen emoticon, thus showing their age.)

  • Longtobefree||

    More than likely, the progressives will come after Gen Z.
    They are going to come after everyone else.

  • Incomprehensible Bitching||

    About half of the country has given into the alt right Witcha terrify you to no end.

    However never forget that the election was stolen by Twitter trolls who aren't real, and really were all decent hard-working Americans you just want Clinton to be president .

  • Rev. Arthur L. Kirkland||

    It's maybe 30 percent, and a chunk of that is just disaffected hangers-on who will cling to anything because they have nothing.

  • Chipper Morning Baculum||

    Carry on, clingers.

  • sharmota4zeb||

    Furie's original Pepe cartoons are rarely copied; rather, the frog's likeness is independently redrawn in a parody of the original. The original Furie-created Pepe is said to be a stoner, playing video games and eating pizza, with a catchphrase of "be nice man." If transforming that chill frog into a goose-stepping Nazi isn't parody, what is?

    It depends ... are the two frogs discussing economic policies, PETA's opposition to kosher slaughtering, or Zionism?

  • Sevo||

    Scotch tape, bandaids and kleenex weep with you...

  • fdog50||

    It shows you exactly why John Belushi's surly Greek diner owner always snarled "No Coke, Pepsi!"

  • Longtobefree||

    Not to mention Xerox - - - - - --

  • Unicorn Abattoir||

    Wendy's fast food restaurants invoked Pepe; so did the Russian embassy in London in an attempt to poke fun at British Prime Minister Theresa May.

    Russia didn't compare the French Prime Minister to a frog??? Cowards are afraid they'll wake up to the FFL goose-stepping in red square.

  • BestUsedCarSales||

    The original line from him was "Feels Good Man". "Be Nice Man" is some new thing I have literally never seen in the decade+ I've been aware of Boy's Club.

  • Chipper Morning Baculum||

    Be excellent to each other.

  • Longtobefree||

    Party on, dude

  • StackOfCoins||

    BUCS is correct. In a panel of the original comic, one of Pepe's friends (roommate?) walks in on Pepe in the restroom, discovering his proclivity for lowering his trousers and underwear to ankles when he urinates. Upon being asked about this habit, Pepe's response is "Feels good man."

  • BestUsedCarSales||

    Land Wolf should have been the one to take off.

  • Longtobefree||

    Furie better be careful or a Chinese blogger will hit him with a copyright case.

  • Longtobefree||

    If the homosexuals can co-opt the Christian rainbow, symbol of God's promise to never again destroy the whole world with a flood, the right can steal the frog.

    Genesis 6:5 5 The Lord saw how great the wickedness of the human race had become on the earth, and that every inclination of the thoughts of the human heart was only evil all the time.
    Genesis 9:11 I establish my covenant with you: Never again will all life be destroyed by the waters of a flood; never again will there be a flood to destroy the earth."
    12 And God said, "This is the sign of the covenant I am making between me and you and every living creature with you, a covenant for all generations to come: 13 I have set my rainbow in the clouds, and it will be the sign of the covenant between me and the earth.

  • JunkScienceIsJunk||

    I hadn't no idea that's where the rainbow came from. Holy shit, every time I learn more about those stories, it becomes even more apparent that this God fella is like every single abusive husband ever.

  • Devastator||

    The rainbow has had religious significance since long before Christianity or Judaism existed. I'm a Pagan and I claim the rainbow as my own.

  • Rock Lobster||

    Yeah, but are you a LGBTQ pagan?

    If not, Wilmer Hale partner Louis Tompros would like a word with you.

  • nhrpolitic||

    Except that you appear to misunderstand what a "parody" is at law. "Parody" isn't just redrawing someone else's work to do something different with it: it's using a re-worked version of prior work *to comment on the prior work itself*. But I don't see--and other than by way of an unsupported comment that itself focuses as much on the "independently redrawn" part of the analysis as the "commentary" element--you don't point to any example of the allegedly infringing works can plausibly be said to "comment on" the original work.

    And lets be honest: they don't; rather, the memes simply *use* the artist's original work--"independently redrawn"--in order to express the infringing commentator's opinion on a variety of matters (race, gender, politics, etc.) entirely separate from the original work. That's not "parody" as U.S. Courts have interpreted the term, and thus it isn't protected use.

  • sparkstable||

    You may be right... I'm no lawyer. However, it is hard to make your description of "parody" as well as your claim that your definition is the one used by courts and the case re: Two Live Crew / Roy Orbison mesh. I highly doubt Two Live Crew had much to say about Roy or his song. They don't strike me as social commentarians.

  • Moo Sharpton||

    That was actually a significant part of the case. The song made a comment on, in essence the naivete of the notions of what a Pretty Woman was, as expressed by Roy.

  • Moo Sharpton||

    Here's what I was looking for. The court said it "can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies."

  • sparkstable||

    Well kiss my grits.... Two Live Crew had something to say. I stand corrected.

  • Vladilyich||

    I totally agree with you. The courts appear to have been paid off (as usual) to support some judge's POV. As a holder of over a dozen copyrights (and three patents) and a person who has spent over 40 years studying patent and copyright law (in the U.S.) it has become a totally corrupt system and 100% politicized. Most people don't realize that the government (at it's whim and money) can revoke a patent and give it to a crony It's happened quite often in the past hundred years. Most people don't realize that FM radio was invented in 1933 by Edwin Armstrong and initially received a patent. When Armstrong wouldn't lease it to the government during WWII, they took away his patent (for "national security"). It wasn't until the late '50s when his wife was able to get the courts to finally restore his patent after his death.

  • sparkstable||

    So his whole argument can be wrapped in as such:

    "It's totally cool to use my stuff, man. Go for it!....... PSYCH!!!! PAY UP!!!"

    What a loser.

  • sparkstable||

    wrapped UP... not in. ugh

  • Devastator||

    he was probably on a phone cut him some slack.

  • sparkstable||

    It was me correcting myself. Trust me... I know me. Me doesn't deserve any slack on this one.

  • JunkScienceIsJunk||

    Patents have been shown to be violations of property rights. Copyright is of course a violation of free speech. Both statist principles, both strongly advocated by the types of people who have no regard for property rights and free speech in the first place.

  • TLBD||

    I used to be pro-IP from a sort of utilitarian point of view, as I believed it was necessary to entice people to invent and innovate.

    However, as with anything the government touches, its poison crept into the system, and it is by and large used as a weapon to distort markets.

    Also, people who make the claim that you cannot own an idea are completely correct.

  • gphx||

    Ur mom loves my Pepe.

  • n00bdragon||

    I'm always mystified why anyone, Furie included, would have a problem with the alt-right adopting Pepe. Pepe is a prototypical loser. Before 2016 his image was mainly invoked as a form of self-deprecation, describing oneself as a hapless manchild. It is a joke on the sort of person who sits in his parents basement browsing 4chan all day, mocking everything from their aspirations in life to their physical (in)capabilities, delusions of intellectualism and self-worth, and of course the depression and rage that lurks beneath their surface. It is a joke about the bottom of the internet, by the bottom of the internet, for the bottom of the internet.

    When Donald Trump tweeted that image of a Pepe version of himself it was roundly laughed at for totally misunderstanding the meme. But some people, rather than laughing AT the president for his mistake, apparently mistook him for someone proud of being everything Pepe represents, and when you talk to those circles the "praise kek" circles that view Pepe as something of a mascot you can still get that impression. These are people who know they are losers at life and for some reason choose to be proud of that. About half see some of the man-baby qualities ascribed to Pepe and to themselves in Trump, the other half are just seeing how far the meme will go.

    If people want to use the prototypical loser as their mascot, why would anyone who doesn't like them want to stop them? Let them describe themselves as Pepe.

  • TLBD||

    TheDonald reddit uses Pepe all of the time. To them, it is basically fuck you, we don't care if you've labeled Pepe alt-right, or if you claim we're racist, or xenophobes, or homophobes, or anything else, because we don't give a fuck what you think about us.

  • Cloudbuster||

    No, u r Pepe.

  • Rock Lobster||

    "From our client's perspective, the message that he wants to make clear is that Pepe the Frog does not belong to the alt-right," Wilmer Hale partner Louis Tompros has told the ABA Journal.

    "You can take our frog, but you'll never take our FREEEEEEDOM!

    On second thought--fuck you, shyster, we're keeping the frog."

    Love,
    Hitler, Or a Reasonable Facsimile Thereof

  • Cloudbuster||

    CORRECTION: This article initially identified Pepe's original catchphrase as "be nice man." That was, in fact, a much later innovation.

    How can I trust anything Reason publishes?

  • Longtobefree||

    It doesn't matter if you believe, just that you click

  • MatBastardson||

    Pepe the frog was created (for a Mexican kid's TV show) by Analia Garcia in 1988, NOT by Matt Furie, who just copied the character. Analia Garcia owns the copyright. See the linked photo, with copyright notice in lower left corner: https://tinyurl.com/y92epfax

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