Pepe the Frog’s creator has promised to wrestle his popular cartoon frog away from the alt-right using legal action, and the alt-right has promised to fight back. Artist Matt Furie’s lawyers served cease and desist letters to online personalities such as Baked Alaska, Richard Spencer, and Mike Cernovich and Digital Millennium Copyright Act notices to some of the platforms which profit from Pepe’s misappropriation.
Large companies such as Google and Amazon have largely complied with the requests from Furie’s lawyers. Google pulled Baked Alaska’s Build the Wall game from it’s Google Play store and Amazon de-listed his book Meme Magic Secrets Revealed. Both used Pepe’s image.
“Amazon respects the intellectual property rights of others and requires that third party sellers do the same when listing items for sale on Amazon,” a representative from the company told me in an email. “We encourage anyone who has an IP rights concern to notify us, and we will investigate it thoroughly and take any appropriate actions.”
Cernovich, Alaska, and members of Reddit’s r/the_Donald subreddit, on the other hand, have vowed to fight. “The creator of Pepe the Frog has officially sued me,” Alaska said on Twitter. “What a time to be alive.”
“Should you file a suit against Mr. Cernovich, we will be delighted to embarrass the fuck out of you.”
Alaska continued to rail against Furie on Twitter, claiming the cease and desist letter was frivolous because he had his own graphic artist mock up an original Pepe for the cover of his book. The same was true of former assistant principal Eric Hauser’s book The Adventures of Pepe and Pede, but Furie’s lawyers successfully settled with Hauser out of court and ended its publication.
“Hillary Clinton’s lawyers have been summoned to sue me, [Cernovich], & others over a cartoon frog meme. Bad idea to start this battle,” Alaska said in another tweet. Then, he posted an image of an expired trademark listing for Pepe and tweeted, “Matt Furie was too dumb to realize his trademark for Pepe The Frog has been expired since Oct 2016. False DCMA claims are strong violations.”
Richard Spencer, the co-owner and editor of Altright.com, has stayed silent, though he has retweeted Alaska’s comments. Cernovich wrote an essay on Medium calling Furie’s legal action “frivolous” and shared a letter from his own lawyers to Furie’s. The letter spends six paragraphs lecturing Furie’s lawyers about the ins and outs of “fair use” of a copyrighted work before demuring.
“Please advise your client that Mr. Cernovich has, at his discretion, removed the video from YouTube and Facebook, but reserves the right to republish them at his pleasure,” the letter reads, referring to one of Cernovich’s videos in which Pepe dances around Clinton while she reads passages from her book.
“Further, he won’t see a dime from Mr. Cernovich. Should you file a suit against Mr. Cernovich, we will be delighted to embarrass the fuck out of you—and set up a malpractice claim by your client against you.”
There’s a lot to unpack there, so let’s start with the lawyers. Wilmer Cutler Pickering Hale and Dorr are representing Furie pro bono and yes, some of the members of their law firm have ties to both Hillary and Bill Clinton. But the firm is the 36th-largest in the United States, and its lawyers have also represented members of the Bush family and Richard Nixon, as well as former Donald Trump campaign manager Paul Manafort, Ivanka Trump, and Jared Kushner. Manafort recently cut times with the WilmerHale, but the long client list proves it is simply a big law firm with many clients.
The idea that Furie’s copyright is invalid because Furie didn’t defend it is simply false. First of all, Alaska posted an old trademark registration, not a copyright. Cernovich’s lawyer also wrote that Furie never “registered” Pepe as a copyright. Though copyrights can be registered with the Federal Government, the creator of a work has an inherent copyright that can be registered at any time.
“Copyright, unlike some other kinds of intellectual property, doesn’t go away if you don’t assert it against everyone who infringes,” Ethan Jacobs, an intellectual property lawyer with Holland Law LLP in San Francisco told me over the phone.
Jacobs also downplayed the idea that Alaska’s appropriation of Pepe for his book cover should be considered a “fair use” of a copyrighted work because someone else drew it. He said it wouldn’t hold up in court. “That’s not a fair use argument,” he said. “If it were, anyone could draw and sell their own Batman cartoons.” It’s worth noting that there is no official definition of “fair use,” and that the defense can only be brought at an actual court proceeding—most copyright cases are settled before they get that far.
Cernovich’s lawyer also suggested that Furie put Pepe in the “public domain” in a 2015 interview he did with the Daily Dot. To be clear, it is impossible for a private citizen to put a work into the “public domain,” which happens when copyright naturally expires 70 years after the creator’s death, or to many works commissioned by the federal government. Even copyright holders who have wanted to put their works in the public domain have found it difficult to do so, and have found it difficult to do so and have had to put their works under what’s known as a Creative Commons 0 license, which means “no rights reserved.”
To be clear, Furie told Daily Dot in 2015 that Pepe “offers you complete support, attention, and embraces how capable you are of birthing your own Pepe.” He then vaguely said that he “believe[s] in supporting people’s decisions to profit off of Pepe in order to provide them with the most positive business experience possible. I strive to be an advocate for Pepe in both love and enterprise and hope to help business people to have an empowering and joyful experience while making an ocean of profits as limitless as the universe.”
This is similar to last week’s copyright saga, in which game developer Campo Santo used a DMCA takedown request to get YouTube to remove a video of embattled streamer PewDiePie, even though the developer notes on its website that it “love[s] when people stream and share experiences in the game. You are free to monetize your videos as well.”
Despite that disclaimer, copyright lawyers told us rights holders have the ability to pick-and-choose when its copyright is enforced, which is what Furie appears to be doing here. It remains to be seen whether Cernovich’s lawyer’s arguments hold any merit in any legal proceedings moving forward.
Over at r/the_Donald and across the web, meanwhile, Pepe fans have enthusiastically shown their love of the cartoon frog by shitposting a stream of Pepe memes and calling it the The Great Meme War II. It’d be hard for Pepe’s lawyers to rid the internet of all those Pepes, but they were never interested in that in the first place—they’re just going after the people making a profit from the frog.
“Anyone who is using Pepe and profiting off of it should be very concerned,” Louis Tompros, one of Furie’s lawyers, told me over the phone.