Furie-ous creator of Pepe the Frog determined to use copyright to get his green creation back

From Boy's Club

Can the author of a comic character oppose what he believes to be a distortion of the character’s meaning?

Katfriend Nedim Malovic (Sandart & Partners) reports on the heated debate surrounding Matt Furie’s Pepe the Frog.

Here’s what Nedim writes:

“Matt Furie, a children’s artist and the face behind the (now) infamous “Pepe the Frog” character, is fed up. After years of unauthorised exploitation of his cartoon by – amongst others – alt-right activists in various racist contexts, Mr Furie made the decision to use copyright to fight back.

The story initially dates back to 2005, when Furie created comic book Boy's Club. In the comics, Pepe was seen urinating with his pants pulled down to his ankles and the catchphrase "feels good man”.

In 2008 the page containing Pepe and his catchphrase was scanned by an anonymous user and uploaded onto 4chan (an image board website).  

4chan users later adapted Pepe’s face and the catchphrase to fit different scenarios and contexts.

An internet meme and GIF sensation was thus born.

Sad Pepe

However, it was not until the US 2016 presidential election that the meme became associated with white supremacist and alt-right organisations. According to media reports, “turning Pepe into a white nationalist icon" was an explicit goal of some in the alt-right movement.

Mr Furie has now vowed to “aggressively enforce his intellectual property”. His lawyers have, inter alia, sent cease-and-desist requests to several alt-right individuals and websites. Furthermore, the lawyers have also submitted Digital Millennium Copyright Act (DMCA) copyright takedown requests to Amazon, Twitter, YouTube and Reddit.

It will be interesting to see how this dispute evolves. It raises interesting points, including the unauthorised distortion of the meaning of one’s own work and the interplay between different rights and interests.

Feels (im)moral man …

Still in the US one might recall the media storm caused by the angry reaction of the sculptor of Charging Bull in relation to the positioning of Fearless Girl [commented on IPKat here]. Although this Wall Street dispute had different tones than the ones in the Pepe the Frog case, it also raised a debate on moral rights protection under US copyright law. As readers know, moral rights protection in the US is fairly narrow compared to European droit d’auteur jurisdictions.

A Pepe GIF

To the Batmobile!

Unlike in the Charging Bull/Fearless Girl case, the copyright issue at stake here appears to be not really moral rights (as it is unlikely that protection would be available under US law) but rather economic rights. Pepe the Frog in this case has been in fact reproduced without authorisation several times, and this raises issues of copyright protection of characters. 

In its recent decision in DC Comics v Mark Towle 2:11-cv-03934-RSWL-OP [here], the Court of Appeals for the 9th Circuit confirmed that:

·       “copyright protection extends not only to an original work as a whole, but also to “sufficiently distinctive” elements, like comic book characters, contained within the work”; but

·        "Not every comic book, television, or motion picture character is entitled to copyright protection ... [C]opyright protection is available only “for characters that are especially distinctive.” … To meet this standard, a character must be “sufficiently delineated” and display “consistent, widely identifiable traits.” In any case

·       “a character may be protectable if it has distinctive character traits and attributes, even if the character does not maintain the same physical appearance in every context.”

In conclusion

The Pepe the Frog case is one to watch: it raises issues of character protection, but also prompts a discussion around the thin moral rights regime in US copyright law. Finally, it calls for consideration – once again – of the interplay between copyright protection, fair use, and freedom of expression.”