Copyright, Censorship, Pepe & Infowars

from the all-mashed-together dept

If you’re reading this, you’re probably well aware of Pepe the Frog, the cartoon character created by Matt Furie years ago that turned into quite the meme by the 4chan crowd. Over time, the meme morphed into one favored by Trump supporters and the alt-right (though, upset that Pepe has become too “mainstream,” that crowd has moved onto something of a derivative work known as Groyper). As you may have heard, Furie has now decided to sue Infowars over a poster the site is selling that puts together a bunch of… well… the crowd of people you’d expect to be fans of Infowars and Pepe.

The lawsuit, which you can read in its entirety, claims copyright infringement — and it’s raising a whole bunch of issues concerning memes and copyright that seemed worth exploring.

To do this, though, I actually find it useful to go back in time a bit, and explore Furie’s changing attitude towards what became of Pepe. Back in the summer of 2015, when Pepe was still a big meme, but not quite one associated with racists, Furie gave an interview with Vice, in which he made it clear that he was pretty chill with what had happened with Pepe.

I don’t really see it as being something that’s negative. It’s this almost post-capitalist kind of success. I’m not making any money off of it, but it’s become its own thing in internet culture. Now, at least, a lot of people make a conscious effort to go out and try and create that kind of meme success, where you’re doing these little one-off characters, little gags, little gifs, and that’s definitely your intention. I’m just flattered by it. I don’t really care. I think it’s cool. In fact, I’m getting kind of inspired by all the weird interpretations of it. I wanna use it to my own advantage and try to come up with comics based on other people’s interpretations of it.

Later in that same interview, he even gives his opinion on people profiting off of Pepe, and again doesn’t have much of a problem with it:

It’s like a decentralized folk art, with people taking it, doing their own thing with it, and then capitalizing on it using bumper stickers or t-shirts. That’s happening to me too. There is a tradition of it.

He even admits to having “a little collection of bootleg Pepe stuff.”

A year or so later, once Pepe had been adopted by the alt-right, Furie still appeared pretty laid back about the whole thing, while making it clear that he, in no way, agreed with the alt-right. But he saw their usage of the meme as a sort of fascinating look at internet culture:

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. The internet is basically encompassing some kind of mass consciousness, and Pepe, with his face, he’s got these large, expressive eyes with puffy eyelids and big rounded lips, I just think that people reinvent him in all these different ways, it’s kind of a blank slate. It’s just out of my control, what people are doing with it, and my thoughts on it, are more of amusement.

He similarly noted that he expected this was just a phase that would fade out over time:

I think that’s it’s just a phase, and come November, it’s just gonna go on to the next phase, obviously that political agenda is exactly the opposite of my own personal feelings, but in terms of meme culture, it’s people reapproppriating things for their own agenda. That’s just a product of the internet. And I think people in whatever dark corners of the internet are just trying to one up each other on how shocking they can make Pepe appear.

And towards the end of the interview, he’s asked if he has any regrets about “not having more control over his image” and Furie responds:

I don’t have any regrets about anything. I do my own thing, and if anything, it’s been kind of interesting to see all the evolutions of Pepe. Yeah, no regrets.

A month after that interview… Furie’s opinion appeared to shift somewhat. In reading how he dealt with it, it certainly appears that Furie more or less got annoyed with everyone asking him about this and/or asking him if he supported the views of the alt right (and more annoyed with their views becoming mainstream as well), and he decided to take action. His initial instincts were to create a new Pepe comic that certainly expresses his opinions on having his own creation adopted by Trump and Trump supporters, and then tried to take back the meme with a sort of anti-meme #SavePepe campaign. Again, this is an interesting move, switching from a passive position of “that nutty internet” to one where you’re fighting memes with memes.

It took another year or so, to last summer, when it appears Furie finally got really fed up with the whole alt-right Pepe thing, and began dispatching cease and desist letters and some DMCA takedowns from a big name law firm. Some news was made when the author of a hateful Islamophobic book using Pepe as a main character agreed not to publish the book, and to donate the $1,500 he had made from an earlier self-published version to the Muslim civil liberties group, the Council on American-Islamic Relations.

And that takes us up to the Infowars lawsuit. It would not surprise me at all to see Infowars cave and settle the case quickly to get it done with. While I think there’s a passable fair use argument here, it’s so mixed up with political emotions, if I were Infowars, I wouldn’t feel at all comfortable having a judge make a ruling on it, let alone a jury. As I’ve noted in the past, while some cases are clearer than others, fair use is one of those ones where judges can twist the four factors test in all sorts of ways to reach the outcome they’d prefer — and Furie is definitely a lot more sympathetic here than Alex Jones. So, while I can see the fair use argument, and don’t think it’s a crazy argument at all, it’s certainly not a slam dunk in an actual courtroom.

What’s much more interesting (and bothersome) to me is that for as much as I understand Furie’s decision and anger over how this all turned out, it’s yet another example of how copyright is frequently morphed into a tool for censorship of ideas, rather than what copyright is actually supposed to be. Copyright is an economic right. The entire purpose was to secure the limited exclusive rights to the copyright holder for the sake of economic benefits. For the most part (with a few small exceptions) the US has rejected using copyright for “moral rights.” Yet, this is, quite obviously, a case where Furie and his lawyers are using it as a quasi-moral rights tool. He’s (quite reasonably!) upset with what Pepe has become (even if he was cool with it originally) and is now using the tool of copyright to stop that.

Even if it’s a legit copyright claim that would hold up in court, the overall situation should trouble folks, because it’s not what copyright is supposed to be used for. Using copyright to stop someone from infringing is supposed to protect purely the economic issues, rather than the moral ones. Yet Furie’s statements and actions (including getting previous bootlegs and declaring it a cool thing) show that this lawsuit is very much about the moral issues and his desire not to allow those with political views he vehemently disagrees with, to use his character. And I can certainly understand why he’d feel that way — but that’s not what copyright is supposed to be used for. And this is the problem we’ve discussed in the past of “copyright creep.” Because copyright is such a powerful tool to stop speech, it is often used that way. And even if the claim would hold up here, the motives behind the use of copyright are clearly not within the intended realm of copyright law. And that’s worrisome.

Either way, I still expect Infowars to settle this rather than fight it (I think they’d be crazy not to…), and I completely understand the reason why Furie may not be happy with the whole situation — but I worry about more and more stories of copyright being used directly to stifle speech, not for any economic reasons, but for purely censorial reasons.

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Comments on “Copyright, Censorship, Pepe & Infowars”

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40 Comments
Anonymous Coward says:

Sometimes the creation of a symbol or character morphs over time into something more sinister in the minds of people.

I used to like that I owned the “mouse ears” cap from someone else’s Disneyland trip, it reminded me of Disney cartoons that I loved and a sign of nostalgia for my childhood. Nowadays, I take the entertainment that Disney provides with a grain of salt, considering what they’ve turned copyright law into for the profitability of their cartoon mouse.

Anonymous Coward says:

Re: Re: Re: Re:

Not the both sides bullshit again.

I hate politics also and there is no good side, however – I would like to know which party you think approves more of oil & gas exploration/drilling mining or whatever in the Alaska wilderness, or anywhere else that has been designated as an area that needs protection from destruction of the habitat.

Neither party seems willing to do anything about the dumping of our crap in the oceans, but I have seen several attempts to stop and/or limit environmental destruction elsewhere and it is not the GOP.

Perhaps you have something that would change my perception, but I doubt it.

Roger Strong (profile) says:

Re: Re:

They’re pro-global warming for national security reasons.

The President spends his weekends at Mar-A-Lago on the Florida coast. Putin just unveiled his anti-Mar-A-Lago missile system.

America’s nuclear deterrent is kept submerged for protection. They’re doing the same with Mar-A-Lago.

Trump is playing 4D chess, man.

PaulT (profile) says:

Re: Re: Re:

“They’re pro-global warming for national security reasons.”

I know you’re joking for the most part in your post, but it’s really economic reasons. These are people who don’t really care if the world burns in 40 years, because they know they’ll be dead by then. They just want to get as many shiny things as they can before they die, and don’t care how many needlessly suffer when their time is past. It’s a damn shame that society has let those people instead of those with empathy, knowledge and wisdom be in charge, but here we are.

Anonymous Coward says:

Counterpoint: this is exactly what copyright should be used for, because you say at the start of the article that Infowars is *selling* the poster containing intellectual content.

Same with the character in the book.

No one could get away with selling a Mickey Mouse book or poster without Disney’s explicit approval, I would think.

Roger Strong (profile) says:

Re: Re:

You’re missing the point: Furie is on record being OK with others using his art. Including making money off it.

The lawsuit appears to be about moral issues – use by the racist alt-right. Which US copyright law doesn’t much support.

If Disney allowed full and free public domain use of Mickey for a couple years AND THEN got picky about how it was used, they might have a problem clawing back the rights too.

Thad (user link) says:

Re: Re: Re:

But it’s a good thing that copyright allows selective enforcement. Otherwise, we’d see companies treat copyright infringement like they treat trademark infringement: constant, overzealous, nonsensical lawsuits against works that are clearly noninfringing.

I get the argument that Furie’s selective enforcement of his copyright is motivated by his own decisions of which uses he’s going to permit and which he’s not, and that those decisions are based on political viewpoints. But I’m not sure what the alternative is, other than requiring aggressive enforcement, which would not be a good outcome.

Daniel Audy (profile) says:

Re: Re: Re:

There is a strong argument to be made that Pepe’s association with alt-right racism is a commercial issue. It certainly damages the original market in which Furie wishes to use the character by tinging the interpretation of anything that character is associated with with the racist fringe that have co-opted him, in violation of Furie’s copyright, as their own.

Anonymous Coward says:

Cultural Demogogary

Attacking an artist just because a group you do not like is using their work for their message is pretty much a terrible idea.

The eventual backlash is going to backfire on everyone that has engaged in this BS. Take a look at how all the “moral outrage” has given governments ammunition and justification to institute filtering on the internet.

The more everyone attacks artists for every little political message their work gets associated with, whether they support it or not will lead to even more stringent copyright and trademark laws. To a point where even being falsely associated with a movement will cause financial harm to businesses.

But I guess that is those types wanted all along, to be able to threaten anyone they don’t like with social assassination. When the pendulum swings back the other way…

Stephen T. Stone (profile) says:

Re: Cultural Demogogary

Attacking an artist just because a group you do not like is using their work for their message is pretty much a terrible idea.

Good thing the “attack” in this article, then, is aimed directly not at Mr. Furie, but at the copyright laws that allow him to file this kind of lawsuit without being laughed out of court at the first possible chance.

Paul Alan Levy (profile) says:

Just because many people think it's OK doesn't make it fair u

Certainly there is a widespread view among many Internet users that once a copyrighted work becomes pervasive, it is fair use to use that copyrighted work free of charge and without permission to communicate your own message.

But the fair use argument is a hard one, even if the use is a political one, so long as the purpose of the use is not to comment on the copyrighted work. And the fact that Furie is willing to have his copyrighted work used in some contexts but not others does not weaken his copyright claim as, for example, in might weaken a trademark claim.

Cautious IP lawyers counsel their clients not to put themsleves at risk this way. Infowars might well back down, but it will be because loss in litigation is likely.

Christenson says:

Re: Just because many people think it's OK doesn't make it fair u

I would say that cautious lawyers counsel their clients not to risk litigation, which is generally a losing proposition on all sides.

The problem with copyright, in the face of the greatest copying machine ever created (it’s called the internet), is that the barriers to copying have become almost nonexistent.

The problem has been compounded by the very vague, but legally enforced contract that “everything is copyright”, whether or not anything is done to perfect that copyright.

So, if something is widespread, how is one to realistically determine the contract it operates under?

Anonymous Coward says:

“So, while I can see the fair use argument, and don’t think it’s a crazy argument at all, it’s certainly not a slam dunk in an actual courtroom.”

Pretty much a slam dunk the other way around. This is someone commercially profiting from an owned creative artistic image not in the public domain. There’s no fair use as it’s not transformative – it’s a straight copy of Pepe’s head, not a news story -unlike republishing the poster here. This is an artistic work not a fact, and arguably not de minimis to the poster. I have no idea if there’s any commercial royalties involved and how much Furies gets from Pepe commercially but it’s for sure that Infowars IS selling the image.

Those are the four pillars of fair use and that poster fails every one of them without having to twist anything politically. Pretty sure any jury or judge is going to slap the Infowars guys upside the head regardless of any political agenda here.

Daniel Audy says:

Re: Re:

By the standards that Fair Use is typically interpreted this probably is transformative. It represents Pepe as part of a collection of headshots of influential figures in a stylized manner. I’m absolutely sympathetic to Furie’s plight but on that particular pillar his argument against Fair Use is, at best, weak.

Thad (user link) says:

Re: Re: Re:

But the question of transformative use is only one part of one of the four factors of fair use — specifically, the “purpose and character” factor.

Given that the use is commercial, it’s not even clear that the transformative nature makes it pass the “purpose and character” test, let alone the other three.

(It probably passes the “amount and sustainability” test. But I wouldn’t bet on it passing “nature of the work” or “effect on work’s value” tests.)

Personanongrata says:

For Whom the Toad Croaks

Copyright, Censorship, Pepe & Infowars

Matt Furie’s Pepe the Frog bears a striking resemblance to a Disney character by name of — Mr Toad.

https://ixquick-proxy.com/do/spg/show_picture.pl?l=english&rais=1&oiu=http%3A%2F%2Fcartoonresearch.com%2Fwp-content%2Fuploads%2F2017%2F10%2FMrToad78RPMFront.png&sp=034d216fb88fb5358287b289aa94c550

“Imitation is the sincerest form of flattery that mediocrity can pay to greatness.” ~ Oscar Wilde

Anonymous Coward says:

There’s another possibility here – that Matt Furie actually doesn’t care how his cartoon character is used, and that he is only trying to get what he believes is his fair share of the profits generated by multi-millionaire Alex Jones’ latest commercial venture.

It might not be unlike a common tactic of software developers — release it open source (or at least freeware) in order to generate fans and speed up its market adoption, and then once it becomes market-dominant, to slowly start abandoning all the original promises made while increasingly locking up the product and going full-commercial.

Yes, it’s a big slap in the face to all the gullible “believers” who contributed code, served as unpaid beta-testers, or provided a valuable advertising service by talking up and spreading the product across the internet.

PaulT (profile) says:

Re: Re:

“There’s another possibility here – that Matt Furie actually doesn’t care how his cartoon character is used, and that he is only trying to get what he believes is his fair share of the profits generated by multi-millionaire Alex Jones’ latest commercial venture.”

Not anywhere as likely as him being happy with the original usage but being unhappy that his creation is now being used to identify modern day Nazis. Not everything’s about money.

“then once it becomes market-dominant, to slowly start abandoning all the original promises made”

…while leaving the original code base under the open source licence, allowing anyone to fork the project and move it in the direction they wish it to move it if they’re unhappy with what one company is doing with the product. It’s happened plenty of times, with a number of notably successful results.

“increasingly locking up the product”

If they do this to the original FOSS code, they’ll normally be doing it in violation of the original licence. They’re free to lock up new additions, but they can’t retroactively lock up the free code they imported. There’s no problem with that.

“going full-commercial”

Lots of FOSS projects are already “full commercial”.

Something tells me you don’t know how open source software actually works, especially with the bollocks you spout in your final paragraph.

PaulT (profile) says:

Re: Re: Re:

In his recent child custody case, his lawyer claimed he was just playing a character and what he says on air shouldn’t be taken as evidence of his actual beliefs:

http://www.independent.co.uk/news/infowars-alex-jones-performance-artist-playing-character-lawyer-conspiracy-theory-donald-trump-a7687571.html

Different claims were later made, so it’s up to you what you want to believe in term so of whether this was a brief moment of honesty or a la lawyer lying to get his client results, but it’s likely that he’s not as much of a true believer as his fans.

Wendy Cockcroft (user link) says:

Copyright creep

Copyright is an economic right. The entire purpose was to secure the limited exclusive rights to the copyright holder for the sake of economic benefits.

Per Article 1 section 8 it’s a temporary right, Mike, that ends when the term does. This is why I’ve been railing against characterising it as property; that’s the driver where copyright creep is concerned.

Using copyright to stop someone from infringing is supposed to protect purely the economic issues, rather than the moral ones.

…because making it a property issue makes it a moral issue. The fact that you can see and explain the nuance doesn’t mean that those who abuse copyright can — or will.

And even if the claim would hold up here, the motives behind the use of copyright are clearly not within the intended realm of copyright law. And that’s worrisome.

Indeed. I don’t recall copyright ever having been described as an economic right, Mike. The trouble with allowing that rabbit to run down the hole is that the "sweat of the brow," "sunk costs," and other spurious arguments gain more credibility. Letting abusers get away with calling it property is one thing but an economic right? That’s another front in the war against copyright creep. We’re already losing.

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