The creator of Pepe the Frog, Matt Furie, has watched a relatively benign cartoon creation he made and distributed in the early 2000s turn into the mascot of right-wing, white nationalist assholes over the past year. When the memes of Pepe the Frog began to take off on right-wing propaganda sites, Furie thought that come the election, Pepe memes on the right would be discarded for something else. Here he is in an interview with The Atlantic’s Adam Serwer back in September, when the world wasn’t entirely on fire.
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.
As we all know, that is not how things worked out in November. Now Furie, represented by lawyers working pro bono, is going after the big opportunist “alt right” players who are using Pepe the Frog to profit in one of their many scams revenue streams. They have sent cease and desist letters to right-wing online pricks Baked Alaska, Mike Cernovich, and Richard Spencer. The early responses are special.
If you don’t know who “Baked Alaska” is, don’t worry, just imagine the biggest racist asshole you can and then put a well-groomed beard on him and a black baseball cap that says “Hey, I’m not going bald, you are!” Cenovich, for his part, took time away from looking at himself in the mirror to pen a Medium article telling everybody to come to his aid, because Mike Cernovich is the king of victimized snowflake alt righters. The arguments made by amateur lawyers Cernovich and Alaska are ones of “fair use,” and “trademark versus copyright.” Vice’s Motherboard does a nice job of explaining the right-wing arguments versus Pepe’s lawyers.
There's a lot to unpack there, so let's start with the lawyers. Wilmer Cutler Pickering Hale and Dorr are representing Furie pro bono and yes, some of the members of their law firm have ties to both Hillary and Bill Clinton. But the firm is the 36th-largest in the United States, and its lawyers have also represented members of the Bush family and Richard Nixon, as well as former Donald Trump campaign manager Paul Manafort, Ivanka Trump, and Jared Kushner. Manafort recently cut times with the WilmerHale, but the long client list proves it is simply a big law firm with many clients.
The idea that Furie's copyright is invalid because Furie didn't defend it is simply false. First of all, Alaska posted an old trademark registration, not a copyright. Cernovich's lawyer also wrote that Furie never "registered" Pepe as a copyright. Though copyrights can be registered with the Federal Government, the creator of a work has an inherent copyright that can be registered at any time. [...]
Jacobs also downplayed the idea that Alaska's appropriation of Pepe for his book cover should be considered a "fair use" of a copyrighted work because someone else drew it. He said it wouldn't hold up in court. "That's not a fair use argument," he said. "If it were, anyone could draw and sell their own Batman cartoons." It's worth noting that there is no official definition of "fair use," and that the defense can only be brought at an actual court proceeding—most copyright cases are settled before they get that far.
Like most white racist thinking, Cernovich and friends feel that the laws of the land don’t really apply to them, and in our country’s history they have evidence of that playing out. But the law is the law, and if this case is taken up on existing copyright laws, Cernovich and Baked Alaska and Richard Spencer are not going to like the results.