LOS ANGELES (CN) – A federal judge indicated Monday that a jury should decide whether the right-wing conspiracy website Infowars’ use of the Pepe the Frog cartoon on a 2017 alt-right poster infringed the artist’s copyright or amounted to political free speech.
Artist Matt Furie first introduced Pepe the Frog – who has enlarged, red lips and bulging black eyes – in 2003, and continued to draw the figure in subsequent comics.
But the alt-right began co-opting the cartoon in 2015, spreading images of Pepe the Frog next to swastikas and white supremacist language. The Anti-Defamation League moved to list the cartoon as a hate symbol and then-presidential candidate Hillary Clinton published an explainer on why Pepe was a racist meme.
The cartoon became a widely circulated meme that year, with celebrities such as Katy Perry and Nicki Minaj sharing images of Pepe.
In 2017, Furie sued after right-wing conspiracy theorist Alex Jones began selling a poster on his Infowars website featuring the cartoon frog next to Jones, President Donald Trump and prominent alt-right figures Milo Yiannopoulos and Ann Coulter, with the text “MAGA” – “Make America Great Again,” Trump’s campaign slogan.
Last month, Infowars argued it is entitled to summary judgment because the inclusion of Pepe in the poster was protected by the fair use doctrine of U.S copyright law, which permits limited use of copyrighted works in parodies or to make a political comment.
In court Monday, Infowars attorney Marc Randazza said Furie abandoned his copyright claims by supporting the work of other artists who profited off the unauthorized use of the cartoon and by saying in news interviews that Pepe “kind of just took a life of its own.”
Furie only sought to enforce his copyright when Pepe the Frog’s image was used by those whose political ideas he disagreed with, Randazza said. He added enforcement of Furie’s copyright claim would have a “chilling effect” on the free speech of artists.
“I don’t know that you can put it back in the box once you’ve abandoned it,” Randazza told U.S. District Judge Michael Fitzgerald. “Pepe’s personality is not one [Furie] can control. It’s like his baby grew up to embarrass his father.”
Furie’s attorney William Kinder of the firm Wilmer Cutler said the artist’s “selective enforcement” of his copyright does not mean he abandoned his legal claim to the cartoon which, Kinder added, Furie sought to benefit from through commercial licensing deals involving the Pepe the Frog image.
Fitzgerald did not appear swayed by Randazza’s arguments, tentatively denying Infowars’ summary judgment motion. He said a jury should decide whether Infowars’ inclusion of Pepe the Frog on its poster amounted to fair use.
Another of Furie’s attorneys, Louis Tompros of Wilmer Cutler, said Infowars’ fair use argument is invalid since the 2017 poster was created for commercial purposes, not political speech.
Tompros told Fitzgerald Infowars continued selling the poster even after receiving a copyright complaint, and raised the price after telling customers it was being forced to remove the poster from the online store.
“The inclusion of Pepe was a commercial decision, it wasn’t political speech,” Tompros said, adding the commercial nature of the act violates the good faith principle of fair use law.
But Fitzgerald said that argument would need to be further developed.
“That’s a stretch,” Fitzgerald told Tompros. “It’s not as if the image of Pepe the Frog was picked out of a hat at random.”
Fitzgerald indicated he would also deny Furie’s motion for summary judgment to allow a jury to decide whether Furie copied the Pepe the Frog image from a popular Argentinean cartoon called El Sapo that he may have seen on the internet or television while on a trip to Mexico. Randazza had argued Furie’s copyright claim is invalid since he merely added arms and a roll under the neck to another work.
“As shown here, it seems sufficient to be a jury question,” Fitzgerald said. “If a plaintiff could just deny, and that was that, there would seldom be the need for any sort of trial.”
Fitzgerald is expected to issue a written ruling on both parties’ summary judgment motions this week.
Both parties, meanwhile, will continue settlement discussions Tuesday.