Pepe the Frog's Creator Is Sending Takedown Notices To Far-Right Sites (vice.com)

An anonymous reader quotes a report from Motherboard: Pepe the Frog creator Matt Furie has made good on his threat to "aggressively enforce his intellectual property." The artist's lawyers have taken legal action against the alt-right. They have served cease and desist orders to several alt-right personalities and websites including Richard Spencer, Mike Cernovich, and the r/the_Donald subreddit. In addition, they have issued Digital Millennium Copyright Act takedown requests to Reddit and Amazon, notifying them that use of Pepe by the alt-right on their platforms is copyright infringement. The message is to the alt-right is clear -- stop using Pepe the Frog or prepare for legal consequences. Furie originally created Pepe as a non-political character for his Boy's Club comic, but Pepe later became an internet meme and during the 2016 U.S. presidential election the alt-right movement appropriated the frog in various grotesque and hateful memes.

Comments

Actually you can

[rsilvergun]

you're thinking of Trademark, this is copyright. He can grant license to and take license from pretty much anyone he damn well pleases. The rules are a little hazy for music because of radio, but print media's pretty cut & dry.

Re: Actually you can

[that this is not und]

I would wager pretty good money that most of the far-right renditions of pepe are not digital copies but instead new artwork.

Who is providing the funding behind this legal action? Pepe was never a particularly successful commercial endeavor. The artist musst have backing from somebody with a political axe to grind.

Re: Actually you can

[ELCouz]

He raised around $34,757 to save pepe! https://www.kickstarter.com/pr...

Re: Actually you can

[John Meacham]

It doesn't take funding to send a copyright infringement letter and his case is pretty clear cut. He just doesn't want his character being appropriated by those groups. He has already said as much several times. No need for a conspiracy.

Re:Actually you can

[AvitarX]

More than likely, by not pursuing, he has less financial damages (as he has pretty much been allowing it to be used license free for ages), but he can definitely send take downs and what not.

Just no willful infringement damages because "it was a meme everybody was using consequence free blah blah" should (though maybe not in reality) be a valid defense against knowing infringement.

Absolutely he can at any time ask any person to not post it, especially in the context of DMCA (which I assume will be the bulk of the efforts). If nobody can post Pepe publicly, it's good enough for him I'd think.

Re: Actually you can

[ArmoredDragon]

Big deal. The MPAA has billions of dollars in its war chest, and it never succeeded in keeping the AACS keys off of the internet, and ultimately gave up.

https://en.wikipedia.org/wiki/...

Re: Actually you can

[OrangeTide]

... are not digital copies but instead new artwork.

Copyright law is based on protecting Mickey Mouse. Drawing any likeness of Mickey and trying to display it publicly can get the attention of Disney's lawyers and in most cases they'd have a very real stance with copyright laws to defend their case.

Re:Actually you can

[ravenshrike]

The relevant portion.

Thoughts on Pepe becoming the mascot for 4chan?

        Pepe offers you complete support, attention, and embraces how capable you are of birthing your own Pepe. As your God, my hope is to enhance your Pepe birthing experience by empowering you through it. Obey Pepe. Obey Me. Bow down to your leader. Worship me. Give me genital love or non-genital love. Both are wonderful.

But 4chan went crazy for Pepe, yes?

        I believe that the most important thing I can do as an artist is to protect the voices of anonymous people on the Internet and help ensure that that those voices are honored. 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.

What about people profiting off of 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. 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.

While he still has control over his original Pepe works the idea that he maintains control over anything else after those statements is ludicrous.

Re: Actually you can

[hey!]

Appeal to the stone.

Re: Actually you can

[viperidaenz]

Isn't that because they were trying to enforce copyright on a number? Someone that's never been done before (and probably should never be done).

Re: Actually you can

[American AC in Paris]

I would wager pretty good money that most of the far-right renditions of pepe are not digital copies but instead new artwork.

It doesn't matter if someone is making their own copy of Pepe the Frog. It's still Pepe the Frog and is not theirs to copy. This is why you don't see Tony the Tiger on your local store brand of frosted cornflakes; you might see a generic cartoon tiger, if that store brand is particularly small and feeling exceptionally lucky.

Who is providing the funding behind this legal action? Pepe was never a particularly successful commercial endeavor. The artist musst have backing from somebody with a political axe to grind.

Pepe is Matt Furie's creation. It doesn't matter if he hasn't earned a single penny from it; it's still his creation do do with as he pleases.

Matt Furie is getting pro bono legal support from Wilmer Cutler Pickering Hale and Dorr LLP. Pro bono means "for free".

As it turns out, there are lots of people who believe very strongly that the alt right is an active threat to civil society and antithetical to American values. Many of these people will happily donate their time, energy and money to shutting the alt-right down through legal action, political advocacy, and public outreach. There's nothing nefarious, illegal, or immoral about that in America. It's a free country.

Re: Actually you can

[CohibaVancouver]

I would wager pretty good money that most of the far-right renditions of pepe are not digital copies but instead new artwork.

You create 'new artwork' of Mickey Mouse and Disney can still go after you. Same deal here.

http://www.speakgif.com/wp-con...

Re: Actually you can

[Pseudonym]

Huh? How is killing off a character in a storyline is not the same thing as relinquishing control of the (ugh, hate this term) intellectual property?

Believe me, Disney/Lucasfilm hasn't relinquished control of Han Solo. Oh, wait, spoiler alert.

Re: Actually you can

[Pseudonym]

It's fairly well-established that parody is only a valid defence if the thing itself is being parodied. If you're not making a parody of Boy's Club or Pepe, then you can't validly claim fair-use parody.

What you're talking about is "satire" (i.e. using the work to criticise something else), which is on shakier grounds, legally, and an active topic of discussion.

Re:Actually you can

[AmiMoJo]

That was an obviously frivolous interview with the Daily Dot. I notice you didn't link to it, presumably so people can't see the context.

He has every right in law to control the use of his character. People are publishing far right anti-immigration comics using Pepe, and he has a right to ask Amazon to respect his copyright and their own rules on intellectual property.

Consider some if the silly statements that other artists have put out over the years. It doesn't invalidate their copyrights.

Re: Actually you can

[hipp5]

Here's a pro bono tip for you, avoid sprinkling semicolons around if you don't know how to use them. Yes I know you do it in an attempt to look smarter, but it ends up having the opposite effect.

Mmmmmm nope. American AC used them correctly; semi-colons can be used to closely join two independent clauses to connect closely related ideas.

Re: Actually you can

[jae471]

Weird Al also clears his songs with the original artist first...

Re: Actually you can

[sexconker]

The entire idea of using Pepe as a racist symbol was itself a parody orchestrated by 4chan to show how fucking stupid the media is.
The media reported on it because they fell for some fake 4chan tweets. They media reported on it a lot.
Then people started using it to mock the media. I have no idea whether or not actual racists use it now, or what it means if they actually do use it.

Either way, it's clearly parody and political expression. He won't win a copyright lawsuit if the defendant has a competent lawyer.

Re:You can't selectively apply the law

[fyrewulff]

Please come back when you learn the difference between trademark and copyright.

Re: As a content creator

[John Meacham]

Again, that is trademark. Copyright has no such requirement.

Sorry

[negRo_slim]

Sorry I'm not familiar with Mr. Furry's work but the times I've seen his Pepe it has appeared fairly different from the one most commonly in use online.

Parody

[JBMcB]

Also, in nearly all of the renditions I've seen, it's been used in a satirical sense, mostly to poke fun at anti-fascists, and, even more hilariously, at fascists themselves.

Re:Parody

[AvitarX]

That's Parody, not Satire (in the legal sense).

Parody, using a piece to make fun of something else, is less protected than people realize

https://www.techdirt.com/artic... (discusses a 1997 ruling).

Re:Parody

[Theaetetus]

Also, in nearly all of the renditions I've seen, it's been used in a satirical sense, mostly to poke fun at anti-fascists, and, even more hilariously, at fascists themselves.

Ironically, your post includes the answer to why this is irrelevant. Notice how your subject line was "parody", but in the body, you say "satire" (well, "satirical")? Those are different things under copyright law.

The short version is that:
(i) parody makes fun of the thing it's copying. Think Weird Al's "Smells like Nirvana", which explicitly makes fun of Nirvana and Smells Like Teen Spirit, or his "Perform That Way" which makes fun of Lady Gaga and Born that Way. Parody falls under fair use because, since you're making fun of the thing you're copying, there's no way to do so without copying it.
(ii) satire makes fun of something else.Think Weird Al's "Eat it" or "I'm fat", which make fun of obesity, but do not make fun of Michael Jackson or those songs, except stylistically. He could have made fun of obesity with countless other songs, so the copyright on those songs do not limit his expressive rights. That's why satire does not fall under fair use.

So, if those renditions you've seen are making fun of, say anti-fascists or Hillary Clinton or what not, they're satires. They are not parodies of Pepe the Frog, and therefore are not protected by fair use, unlike if they had actually been parodies.

As an aside, Weird Al always gets permission from artists before he copies their songs, and while it's primarily because he's such a nice guy, the above satire/parody divide is another significant reason.

Disclaimer: I am an IP lawyer. I am not your IP lawyer, and this is not legal advice.

That still doesn't matter

[rsilvergun]

if I freehand copy an X-Men comic book that doesn't give me copyright to it.

As for the funding, thanks to the DMCA it's trivial to send take down notices. And yes, the artist probably does have an Ax to grind. His character's been made into a symbol for a group of at best Nazi sympathizers and at worst actual Swastika flag flying Nazi's. A character he intended for childrend's books. Any sane person would be furious.

If they'd done it to the Coca-Cola polar bear or Mickey mouse what do you think the reaction would be? Would you still be writing the phrase "an axe to grind" or questioning the artist's motives?

Re:That still doesn't matter

[PopeRatzo]

tens of millions of people "nazis"

I think we saw at the "Mother of All Rallies" (#MOAR) that it's more like 120 people than it is "tens of millions".

Re:That still doesn't matter

[MightyMartian]

First of all, I doubt it's even a million. Second of all racism is hardly merely a "political opinion".

Re:That still doesn't matter

[Anonymous Coward]

1) It's a few thousand nationwide if you're lucky, and 2) Slapping the label "racism" on something you don't like doesn't invalidate it. Border security isn't "racist". Deporting illegal immigrants isn't "racist". Wearing high heels on a rainy day isn't "racist". Your team losing the big game isn't "racist". A bird crapping on your windshield isn't "racist"....The left really fucking needs to learn a new tactic of persuasion other than bullying people into submission by calling them "racist".

Furthermore, there's a whole shitload more involved with being a "nazi" than just being racist.

Re:That still doesn't matter

[Pfhorrest]

We don't call them Nazis just because of their repugnant political opinions, we call them Nazis because they wear swastikas, give Nazi salutes, and chant Nazi slogans. You know, like Nazis.

Re:That still doesn't matter

[AmiMoJo]

This is how they gaslight you. They claim the Kekistan flag isn't related to the Nazi swastika flag at all, but they know that it really is and use it as a signal to each other. If you point this out they accuse you of wild conspiracy theories and of calling everyone a Nazi.

Re:That still doesn't matter

[stinerman]

Border security isn't "racist". Deporting illegal immigrants isn't "racist".

In and of itself, no. But if you're for increased border security and deporting illegal immigrants specifically because you don't want people of latino persuasion in the country, then yes, that is racist. And from the people I've met, they aren't really concerned about people from Ireland overstaying their visas. They're specifically worried about people of European descent becoming a minority in the USA.

I don't know anything about you so I have no idea what you believe. And there are a good number of people who believe we should have increased border security (I'm one of them!), but there are also a good number of people who just so happen to be for these things specifically because they think that there are too many non-Europeans in the country as it is. That is racist.

Re:That still doesn't matter

[AmiMoJo]

That's the other part of the gaslighting. They go on 4chan's /pol and Reddit and post far-right, literal Nazi stuff, and then when called out on it claim that it's all a joke and you can't take a joke and why are you such a sensitive snowflake kek

What is your deal Mashiki? Are you part of it, are you trying to gaslight me, or are you just an idiot? You fell for Pizzagate... So it's hard to know if you are just gullible or deliberately putting this stuff out.

Won't someone PLEASE think of the Kekistanis?

[elrous0]

Haven't those poor people been through enough already without you taking their memes away too?!?

That didn't work for Penny Arcade

[rsilvergun]

when they tried it with "American McGee's Strawberry Shortcake" and it won't work here. The thing is you can Parody Pepe the Frog all day long if you want. But that's not what you're doing. You're parodying the Anti-Fa movement _using_ Pepe.

Parody is only fair use when the thing you're using is what you're making fun of. Otherwise you're just borrowing other folks work/art/ideas because you couldn't get your point across with your own. Either try harder or come to terms with the thought that your ideas don't have a strong enough foundation to stand on their own.

Re:Don't user created memes fall under fair use?

[AvitarX]

If it's not directly commentary on the character Pepe (satire), it likely isn't fair use.

Though the fact that they're not monetized does help the case.

Likely it will be too expensive to pursue a fair use case for each and every instance, so the DMCA will win out.

You can parody him all you want

[rsilvergun]

you can even use Pepe to do it. What you _can't_ do is borrow a completely unrelated piece of art to do it. e.g. you couldn't do a comic of Mickey mouse talking about how much you hate the Pepe take down notices. Disney can and will sue you and win. That's because Mickey Mouse has nothing to do with the parody, and you would have used it just to get attention for your parody.

Re: Don't user created memes fall under fair use?

[maorb]

The relevant part from your link being:

"but always remember that your creations only exist through the good graces of the copyright holder and they can change their mind at any point"

Full fan movies and fan art fall into the same category legally speaking. The copyright holder has a large deal of freedom in choosing who, if anyone, to bring a case against.

Re:Good luck with that

[quantaman]

http://fairuse.stanford.edu/ov...

In fact, his pursuing rigorous legal claims over such a stupid use makes him prone to parody or satire, which opens up fair use even further.

Well played!

From your link:
In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

Alt-right Pepe memes do not "comment upon, criticize, or parody a copyrighted work". They use his work to "comment upon, criticize, or parody" unrelated targets.

I can make a cartoon that parodies The Simpsons, Family Guy has an element of that.

But I can't make a cartoon parodying environmentalists staring Homer Simpson. Fox would sue me out of existence.

Re:Good luck with that

[gsslay]

I suggest you go look up the terms "parody" and "satire". You clearly don't understand what they mean.

Hint: they don't mean "being funny, with someone else's copyrighted material" or "criticising something unrelated, with someone else's copyrighted material"

Re:Kekistan

[MrKaos]

Hmmmm...maybe we should raise the voting age.

Maybe we should cap it. Then open it to children as young as, say speaking age loaded up with all the responsibility for running society that you can't escape until about 40, maybe 50 years old at which time you are subjected to all of the consequences of your own decisions for the rest of your life.

It sounds crazy however that's how the free Kekistanis promote the values in their society. What most don't realize is because frogs can change their sex, not using an individual's gender pro-noun is considered to be hate-speech in Kekistan.

Re:You can't selectively apply the law

[jellomizer]

You can choose to not enforce or go after every breach of the law.
So he can target right wing group because he can.
The law doesn’t accept look see the other guy is doing it, as much as your parents don’t.