Pepe The Frog Creator, Infowars Both Claim Victory After $15k Copyright Settlement

from the croak dept

A little over a year ago, we discussed Matt Furie, the creator of the Pepe the Frog character that became an alt-right meme sensation, suing Infowars for selling posters featuring his character. That post was fraught with subtle takes, frankly, largely the result of Furie's wishy-washy history over how he protected his creation, or not, and the fact that the other side of the story was Infowars. Infowars is of course a conspiracy-mongering lie-factory run by play-acting assclowns that make gobs of money by getting followers to harass the parents of dead children and then selling those same followers merchandise and diet pills.

A better description of the hellscape that is 2019 cannot be found.

Still, Furie's decision to sue Infowars despite his previously being cool with people making memes out of the Pepe character made it clear that his reason for suing was a moral one, in that he didn't want Pepe to be used alongside hateful content. Copyright, meanwhile, is meant to be deployed on economic grounds, making this all quite murky. On top of that, meme culture could be threatened by these types of actions, all over a moral dispute that really has no place in terms of copyright enforcement.

Well, in keeping with the theme, Furie's moral dispute has resulted in a moral victory of sorts, with Infowars agreeing to settle out of court for $15k and both sides claiming victory. First, the facts on the settlement.

Infowars was forced to pay $15,000 in a settlement to the creator of Pepe the Frog, a cartoon amphibian who had been co-opted as a meme by right-wing internet users, after selling a poster that featured the character on its website.

Per Furie's side of the equation, the paltry sum was by design. Furie has stated publicly through his lawyers that this wasn't meant to be a money grab. Instead, it was meant to deter other groups that would seek to re-purpose Pepe for hateful speech. This, again, is simply not the purpose of copyright law. Furie can be permissive with the image being used by some and restrictive for others, but the fact that copyright law allows this is a bug and not a feature.

Infowars, meanwhile, is spinning this as a complete victory due to the small amount of money in the settlement.

Infowars claimed a “strategic victory” for Jones, calling the sum a “tiny settlement” in a release posted on the website. Infowars lawyer Robert Barnes said in a statement: “Happy to announce the folks suing Infowars over Pepe the Frog have agreed to settle, and accept a licensing fee of $15,000.”

Barnes said: “They thought we wouldn’t fight. They thought we wouldn’t win in court. They thought wrong.”

How truthful you think Infowars is being in labeling this as any kind of victory aside, the fact that it can put out statements like this undercuts the moral argument question to at least some degree. If Furie's purpose in using copyright law to claim a moral victory rested on deterrence, Infowars' statement sure doesn't send the kind of message that will result in deterrence at all. Instead, the copyright lawsuit almost looks like a pass-through cost.

As for Furie's side, even the victory lap his lawyers took makes it clear that this is all about a moral stance.

“For the last year or so we’ve been playing this game of Whack-a-Mole using cease-and-desist letters and the Millennium Copyright Act,” Tompros explained. “Memes are sort of new and the internet spread of memes are certainly a recent phenomenon, but at the end of the day, the copyright principles are reasonably easy to apply in this context, as long as you’re thinking about it precisely and carefully.”

“Matt (Furie’s) going to enforce his copyrights aggressively to make sure nobody else is profiting off associating Pepe the Frog with hateful imagery,” Tompros said.

Except that doesn't really do the job, does it? Unless Furie wants to expand his Pepe war on non-commercial uses, much of which would likely be protected Fair Use, the hateful imagery is absolutely going to continue. Dancing in the end zone by claiming that commercial uses will heretofore cease seems like the hollowest of victories.

So what was all of this for? A tiny settlement awarded to a creator that didn't like how his content was being used in some instances with the defendant claiming a strategic victory. It's hard to see how that isn't a waste of everyone's time.

Filed Under: alex jones, copyright, fair use, matt furie, moral rights, pepe
Companies: infowars


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  • icon
    Mason Wheeler (profile), 14 Jun 2019 @ 1:46pm

    Memes are sort of new and the internet spread of memes are certainly a recent phenomenon

    Huh?

    The term, in its present usage, may be relatively new, but people have been creating and sharing image macros on the web for decades now. It's by no means a new phenomenon.

    reply to this | link to this | view in chronology ]

    • identicon
      TFG, 14 Jun 2019 @ 3:36pm

      Re:

      When I read the article that this one references, I raised my eyebrows at that line from the lawyer as well.

      Seems that lawyer is either out of touch, or is looking at a much longer time scale than the rest of us generally do.

      Of course, then you could argue that the concept of the "meme" has been around for ages, and has simply been amplified and sped up by the internet and the speed and ease of communication that it provides.

      Par exemple: the Funky S. Kilroy was here. Frodo Lives.

      Or if you want to go incredibly old school... there's The Sator Square.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Jun 2019 @ 6:53pm

        Re: Re:

        In my observation, a significant portions of TD's article are about people/groups/clowns that are "out of touch [with reality]" (or suffering from some similar cognative disorder).

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jun 2019 @ 1:33am

      Re:

      Has he never heard of "Kilroy was here". A meme dating back to WWII.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jun 2019 @ 9:03am

      Re:

      "Meme" doesn't mean "image macro". Richard Dawkins coined the term in 1976. Examples include the (2500-year-old) ideas of Socrates, and religions. Stuff like that would've been on the internet from the beginning, but as for recognition, Wikipedia says "the concept of the Internet meme was first proposed by Mike Godwin in the June 1993 issue of Wired".

      reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 14 Jun 2019 @ 2:18pm

    Except that doesn't really do the job, does it? Unless Furie wants to expand his Pepe war on non-commercial uses, much of which would likely be protected Fair Use, the hateful imagery is absolutely going to continue. Dancing in the end zone by claiming that commercial uses will heretofore cease seems like the hollowest of victories.

    This...seems a little muddled to me, TBH. You spend much of the article disagreeing with Furie's decision to go after Infowars because he's using copyright law to enforce a moral position when it's designed for economic purposes, and then...at the end you seem to ask what the point is in going after someone who was selling Pepe memorabilia but not people who use Pepe noncommercially.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Atticus 'Torpedo' Tann-Kerr, 14 Jun 2019 @ 4:24pm

      Timmy just spewing hate / virtue signal, "Thad". No real point.

      Myself and many others long since (at least 10 years) abandoned Infowars when became clear is just another Jewish propaganda front. Jones was married to a Jewess, has Jewish lawyers, and so on. That wouldn't bother me (nor most) since I don't put trust in ANY organization (least of all in those which claim to not be biased), just take their "news" and try to guess what's real, except that Jones very noticeably doesn't mention the crimes of the apartheid Israeli state. Along with his not only unwavering but now firmer support for Trump after several BAD war-mongering policies including favoring Israel, Infowars is just not credible enough to bother with, though, more than Techdirt / Masnick, since trying to appear "conservative". -- Nonetheless I support his right to "platforms" barring any actual violation of common law.

      And my point here is that Timmy is actually stating how he abhors and disbelieves Jewish proganda -- though I grant that Timmy may not know that he is.

      Just take into consideration, everyone: Don't believe anything you see on teh internets. Tens to hundreds of billions at stake so it's not beyond possible that you're lied to constantly. -- Even CNN can't help doubting the latest tanker attacks!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Jun 2019 @ 4:41pm

        Re: Blue just spewing hate No real point.

        Speaking of virtue signaling. Most anti-semites keep the dog whistle below a roar.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Jun 2019 @ 5:14pm

        Re: Timmy just spewing hate / virtue signal, "Thad". N

        lol

        reply to this | link to this | view in chronology ]

      • identicon
        Rocky, 14 Jun 2019 @ 5:17pm

        The paid shill returns!

        So, how much money do you get for shit-posting here?

        reply to this | link to this | view in chronology ]

      • icon
        Gary (profile), 14 Jun 2019 @ 8:17pm

        Re: Blue Balls just spewing hate

        Myself and many others long since (at least 10 years) abandoned Infowars when became clear is just another Jewish propaganda front.

        Just remember folks - Blue Balls isn't just a MAGAt patriot, he hates jews and minorities, and is convinced the secret cabal is tapping his phones.

        Blue Balls loves censorship and hates the constitution.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jun 2019 @ 3:31pm

    It's hard to see how that isn't a waste of everyone's time.

    The lawyers got billable hours out of it, so it did not waste their time.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jun 2019 @ 4:00pm

    Copyright is about control over one's work, for economic or other reasons.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jun 2019 @ 4:31pm

      Re:

      are you a wikibot or something?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Jun 2019 @ 9:41pm

      Re:

      It used to be economic - then you idiots started ordering takedowns because some neckbeard reviewed your game in a way you didn't like. Or because you felt so triggered about YouTube videos cutting in on the white noise/birdsong audio market, of all things.

      Then the public saw the light that you stepped into, the light proving that you're nothing but smoke, mirrors and charlatans.

      reply to this | link to this | view in chronology ]

  • identicon
    Sok Puppette, 14 Jun 2019 @ 4:37pm

    Issue closed: not a bug

    I'm having trouble seeing how economic interests are in any way better justifications for copyright than moral ones are.

    In fact, I think I'll make the stronger statement that that's bullshit. Either you should have X form of control over my works, or you should not. Your motivations for exercising control shouldn't come into it.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 14 Jun 2019 @ 4:53pm

      If a creative work is used by a third party under Fair Use principles, and the original artist has a moral objection to Fair Use, who should prevail in an infringement lawsuit?

      reply to this | link to this | view in chronology ]

      • icon
        sumgai (profile), 14 Jun 2019 @ 8:02pm

        Re:

        That's easy, Stephen - a content originator cannot override Fair Use for any reason. That's a limitation placed upon the C.O. for good reason.

        While Tim appears to be upset about morality being as important as, or even moreso than, economic concerns, it has already been correctly pointed out that the Constitution provided for Congress to make laws that ensure a fair copyright system (and patents, too.) If that document did not set any limitations, and if Congress passes legislation that stands up to Constitutional scrutiny, then any whining is just that, whining.

        From what I can tell, Infowars did not use the image (or character) in a Fair Use manner, as prescribed by law. That allowed the C.O. to go after them, for whatever reason he might've wished.

        I will admit that the $15K was just about enough to pay off his lawyers, so he didn't really send any kind of deterrent message... IMHO. Tim's correct here, the appropriation of Pepe (for example) won't stop because of this one instance of copyright being used in a legally accepted manner. To make such shenanigans stop, one has to take enough money away from the perpetrator to get the attention of sponsors and/or insurance companies.

        sumgai

        reply to this | link to this | view in chronology ]

        • identicon
          TFG, 15 Jun 2019 @ 9:27am

          Re: Re:

          Apparently the $15000 was the profits from the sale of the poster with the pepe image on it ($14000) + $1000 for damages or something. Not much of a deterrent, but the creator of Pepe was always targeting the profits made off the image.

          I can respect that philosophy in terms of copyright litigation as a whole, though, yes, it doesn't do a lot in this particular case.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jun 2019 @ 10:19am

      Re: Issue closed: not a bug

      "I'm having trouble seeing how economic interests are in any way better justifications for copyright than moral ones are."

      How does that tie in with the topic?

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 16 Jun 2019 @ 7:52am

      Re: Issue closed: not a bug

      There are problems with the moral rights view of copyright. If you base it on moral rights, how can it be moral to allow the copyright to expire? Or at least, how can it expire while the author is still alive to express his or her moral views? Of course that's a hypothetical problem at the moment, since they don't, but if someday we were to try to go back to a sane copyright term, that would be made easier if copyright remains an economic issue. Also despite your quite good stance on fair use, it seems people have a harder time making use of fair use defenses in places with copyright moral rights.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 16 Jun 2019 @ 5:24pm

        Re: Re: Issue closed: not a bug

        Also despite your quite good stance on fair use, it seems people have a harder time making use of fair use defenses in places with copyright moral rights.

        As is pretty much guaranteed to be the case, given 'moral rights' can easily be in direct conflict with fair use.

        'Moral rights' would suggest that you need to(or at a minimum should) get permission from the creator. Fair use does not require this.

        'Moral rights' would imply that the creator can refuse to allow use because they don't like the person asking and/or their message. Fair use doesn't care.

        One could argue that 'moral rights' would mean that if you use someone's stuff and get money from it they should get a cut if not the majority of the profits, since it involved their stuff. Fair use doesn't require them be paid at all.

        Which wins out in a given case will probably depend on which you consider to have a higher priority, copyright to serve the creator, or copyright to serve the public.

        reply to this | link to this | view in chronology ]

  • identicon
    David, 14 Jun 2019 @ 5:45pm

    Sorry, you are wrong.

    Furie has stated publicly through his lawyers that this wasn't meant to be a money grab. Instead, it was meant to deter other groups that would seek to re-purpose Pepe for hateful speech. This, again, is simply not the purpose of copyright law. Furie can be permissive with the image being used by some and restrictive for others, but the fact that copyright law allows this is a bug and not a feature.

    That's complete bullshit. Copyright law has been designed to keep control with the copyright holder. There is no mandatory licensing outside of the copyright holder's control similar to how standard-relevant patents are regulated. That there are copyright societies that force you to relinquish your rights for decision-making and that offer stock rates: that is the bug not envisioned by the creators of copyright law.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 14 Jun 2019 @ 8:41pm

      Re: Sorry, you are wrong.

      Copyright law has been designed to keep control with the copyright holder.

      No, copyright law is not designed to "keep control with the copyright holder." Copyright law is designed as an economic right to provide a limited monopoly incentive for a limited time, in order to provide incentives to create. But the point of copyright law is to "promote the progress" by benefiting the public through the release of new works.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Jun 2019 @ 4:59am

        Re: Re: Sorry, you are wrong.

        Copyright law is designed as an economic right

        Where does it say anything about being confined to an "economic right"? It is supposed to be an incentive by providing a time-limited monopoly, but that monopoly is not restricted to economic use. You are imagining that the only possible incentive for anything is monetary, but that isn't even the case if you stipulate the original non-inflated copyright durations. For example, you can write a political speech only to be used by one candidate and the time limitation is not much of a problem since by the time copyright ends, the political situation has changed and the interest in the speech has changed from one shaping the political situation to a historical one.

        reply to this | link to this | view in chronology ]

        • identicon
          David, 15 Jun 2019 @ 5:05am

          Re: Re: Re: Sorry, you are wrong.

          By the way: by stating that copyright law is designed as an economic right only, you are also stating that the GPL is a perversion of the intent of copyright law since it is employed by the original author to promote mutual sharing rather than stuffing their pockets.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 15 Jun 2019 @ 5:46am

            Re: Re: Re: Re: Sorry, you are wrong.

            You are wrong.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 15 Jun 2019 @ 9:17am

            Re: Re: Re: Re: Sorry, you are wrong.

            you are also stating that the GPL is a perversion of the intent of copyright law

            Copyleft was absolutely meant to be a perversion of the "copyright culture" of the time (which continues to this day) and a way to subvert the usual operation of the laws. The word derives from jokes/memes that several people had independently created in the years prior ("all rights reversed" etc.).

            As for the "intent" of copyright law, it depends which law you mean. The original American laws were meant to benefit the public and promote progress, which GPL is compatible with. But the first copyright laws were tools of censorship, and today's laws are tools of control with no pretense of public benefit.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Jun 2019 @ 9:10am

        Re: Re: Sorry, you are wrong.

        Copyright law is designed as an economic right to provide a limited monopoly incentive for a limited time, in order to provide incentives to create.

        I gotta disagree with you here. That's why the Constitution allows for copyright law, and the laws of 100 years ago may have been designed that way; but when we say "copyright law" we're generally talking about what's in effect now. Tell me with a straight face that the (Sonny Bono) Copyright Term Extension Act was designed to provide incentives to create, or to promote progress of anything but Disney's bank account.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jun 2019 @ 2:39am

      Re: Sorry, you are wrong.

      Agree with you on this one

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jun 2019 @ 8:06pm

    Infowars claimed a “strategic victory” for Jones, calling the sum a “tiny settlement” in a release posted on the website. Infowars lawyer Robert Barnes said in a statement: “Happy to announce the folks suing Infowars over Pepe the Frog have agreed to settle, and accept a licensing fee of $15,000.”

    Barnes said: “They thought we wouldn’t fight. They thought we wouldn’t win in court. They thought wrong.”

    ...uh, you didn't "win in court" ...?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jun 2019 @ 1:12am

    InfoWars, the reason I switched to duckduckgo.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jun 2019 @ 1:20am

    Na. Sorry, not with you on this one

    My take on this is that the creator, Matt Furie, was cool with his creation being used for memes etc, but not ok when it started being used by Infowars, for both moral and commercial grounds.

    He went after them using copyright laws because.....well... what else could he have used to stop them using his creation? And he kept the amount low just to show it was not about the money.

    You say "Copyright, meanwhile, is meant to be deployed on economic grounds".

    No it is not. It is to ensure the copyright holder keeps control of his creation to "promote the progress" by benefiting the public through the release of new works. Not a word there about money. The fact that it almost always means money is the bug, not the feature.

    Take an example. The foundation on which the Linux GPL is based is copyright law. Their use of copyright is top keep control of who uses it, and is not economic in nature. Are you trying to argue that the Linux GPL is not 'valid' because their use of it is not economic?

    Sorry Mike, wrong on this one.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jun 2019 @ 2:30am

      Re: Na. Sorry, not with you on this one

      I see you're just another dumbass who can't figure out that Mike didn't write the article.

      reply to this | link to this | view in chronology ]

    • identicon
      Eter, 15 Jun 2019 @ 3:03am

      Re: Na. Sorry, not with you on this one

      I posted this. Did not mean to post annomous.

      Just to add. "..... money is the bug, not the feature."

      Taking my tongue out of my mouth for a minute, money is the means by which the copyright is controlled, not the purpose. And yes money is usually the reward, but, by no means at all, is it the only means of reward. See comment about the GPL.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Jun 2019 @ 6:03pm

      Re: Na. Sorry, not with you on this one

      It is to ensure the copyright holder keeps control of his creation to "promote the progress" by benefiting the public through the release of new works

      This part is fair. This part earlier in the statement, however, isn't:

      He went after them using copyright laws because.....well... what else could he have used to stop them using his creation?

      Exactly what progress was being promoted through the misuse of copyright law here?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jun 2019 @ 9:24am

    Anyone who wants to mock the left uses Pepe, it's not just an alt-right thing at all..

    reply to this | link to this | view in chronology ]

  • identicon
    Free, 16 Jun 2019 @ 7:54pm

    Techdirt drinking the Koolaid?

    I think Techdirt is quite wrong about Infowars.
    They may hype things up a bit, but essentially they are right about a number of issues.
    Your portrayal of them suggests you only read headlines.

    reply to this | link to this | view in chronology ]


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