Pepe Settlement Is ‘Missed Opportunity’ for Fair Use Guidance

A settlement in a copyright infringement lawsuit between Alex Jones’ Infowars LLC and the artist behind Pepe the Frog denied practitioners hoped-for legal guidance in an era where images are quickly shared and widely adapted.

Infowars paid $15,000 to settle a dispute heading to trial, where a jury was to determine whether adding Pepe the Frog to a poster featuring right-wing political figures and President Donald Trump was fair use under copyright law. Alt-right and neo-Nazi fringe groups also had adopted the Pepe character.

That settlement marks “a missed opportunity” to clarify issues involving the changes “that social media has brought about,” Michael Lovitz, attorney and owner of Lovitz IP Law PC, said.

“Part of the problem with the internet is it starts to cloud the origin issues, because you have these derivative works that aren’t necessarily authorized but become prevalent,” Lovitz said.

Jon Allen, the artist behind the Make America Great Again poster sold by Infowars, said he drew Pepe using an image found in a Google image search. Allen said he was unaware that Matt Furie was Pepe’s creator, though he knew the character was a meme. The settlement covered the profits made from the poster and prohibited from future sales by Infowars of it or other items featuring the Pepe character without license.

“Each decision involving unauthorized on-line and social media uses of copyrighted characters and works helps to reinforce that copyright is equally applicable in the digital or virtual world as it is in the ‘real’ world, and helps put people on notice that just because it’s a meme doesn’t mean you’re immune to legal action,” Lovitz said.

Unanswered Questions

The case, brought in the U.S. District Court for the Central District of California, was unusual for a copyright infringement action, Jason Bloom, head of Copyright Practice Group at Haynes and Boone LLP, said.

In typical copyright disputes, “you end up with someone who is infringing work for their own profit, but not necessarily using it in a way that takes on a connotation other than what the original work had,” Bloom said. But in this case, a copyrighted character was “taken over and used by the alt-right movement for negative reasons.”

The lack of a trial in the case left important questions in the air, Bloom said, such as “to what extent is a negative use like this taken into account into the fair use analysis and damage analysis,” especially when the image becomes primarily associated with the “negative connotation.”

“It would have been nice to get some kind of opinion beyond the summary judgment saying we’ll have a jury trial,” Bloom said. “The more case law on this topic, the better.”

Pepe, which originated as an online comic character in the early 2000s, was “a widespread internet meme, appearing through social media, online message boards, and other media sources” by 2008, U.S. District Judge Michael W. Fitzgerald said in his order on summary judgment.

Infowars argued that in the ensuing years, Furie made statements to media outlets implying that he was okay with his character being used as a meme, which the defendants said suggested he abandoned his copyrights to the work. Furie, however, argued that such statements were sarcastic and joking, and that he publicly confirmed that he owned and would enforce his copyrights to Pepe.

The judge had left the question of abandonment to the jury, and a verdict “would have been a beautiful way to find the pushback line,” Alan Behr, partner in the Corporate & Business Law Department and Intellectual Property practice at Phillips Nizer LLP, said.

Furie “said a lot of things you shouldn’t say if you want to keep your rights,” Behr said. “We don’t know to what extent how much chatting away your rights will actually cause you to lose your rights.”

Furie’s varying public comments presented “a fresh fact pattern” that “the courts really hadn’t had to deal with,” Lovitz said.

‘Important Lessons’

The case, despite the settlement, revealed “two important lessons for people thinking about how copyright law works in the meme world,” Annemarie Bridy, professor of law at the University of Idaho, said.

The first lesson centers on avoiding abandonment allegations. “Creators should really avoid making public statements about tolerance for unauthorized uses or saying they don’t care about what happens with their copyright,” Bridy said.

The other lesson is that “meme-ification, or virality, doesn’t diminish the strength of the copyright,” Bridy said, pointing to the order on summary judgment.

Some practitioners view the settlement as a potential victory for copyrights.

“The fact that there is a settlement does help reinforce the long-standing understanding that works of authorship are entitled to the same types of protections, no matter what form of use—print, online, social media, whatever it might be,” Lovitz said.