Is Pepe like Luke Skywalker—or just a super-chill frog anyone can use?
When Matt Furie drew Pepe the Frog for a short-lived magazine in 2005, he had no way of knowing the character would become a mascot for the so-called “alt-right,” a loose coalition of far-right groups that veer toward white nationalism.
But during the 2016 election cycle, that’s exactly what happened—and that’s what Furie is now trying to undo. Furie has undertaken a campaign to restore Pepe’s image as the gentle, stoner frog he intended, rather than a symbol of hate. He has hired a lawyer to send cease-and-desist letters over uses of Pepe that he didn’t authorize. So far, targets include T-shirts being sold on Amazon and elsewhere, a book by an alt-right blogger “Baked Alaska” called Meme Magic: Secrets Revealed, a video game called Build the Wall, and a video by another alt-right blogger, Mike Cernovich.
Cernovich’s lawyer, Marc Randazza, penned a blistering note to Furie threatening to “embarrass the fuck out of” him and stating that his client’s Pepe video was fair use. Notably, though, Cernovich also took down the disputed video.
In general, the targets of Furie’s legal missives clearly aren’t interested in putting up a fight to defend their use of Pepe. But what would happen if one of them were to fight back? Is the adaptation of an animated character, especially for political purposes that its creator abhors, fair use and fair game—or copyright infringement?
Fair use is a defense to copyright infringement if certain elements are met. It’s decided on a case-by-case basis. “There is no specific number of words, lines, or notes that may safely be taken without permission,” according to the US Copyright Office. There are, however, at least four factors to be considered when deciding fair use: the purpose of use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.
In one of Furie’s early comics, he portrayed Pepe standing up, urinating with his pants fully removed. “Feels good, man,” was the frog’s explanation for his behavior.
This became a meme in 2008, believed to have originated on 4chan, where one of Furie’s one-page comics featuring Pepe was uploaded. From there, the image became used in all kinds of weird and unpredictable ways—a phenomenon that Furie reflected on in a 2015 interview with Vice. At the time, he wasn’t at all bothered that his drawing had taken on a life of its own.
“I think it’s cool,” said Furie at the time. “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.”
Asked specifically if he had a “principled objection” to art being used by those other than the original artist, Furie said he didn’t.
“I do art outside of Boy’s Club, and I reference Terminator or Ronald McDonald or other pop-cultural stuff that I didn’t come up with,” he said. “If I see someone selling something on Etsy, like a Pepe pin or something, I just ask them to send me some. I have a little collection of bootleg Pepe stuff, some t-shirts and a necklace and an earring and some pins and things like that.”
That all changed during the 2016 election cycle when the various white nationalists and other far-right elements adopted Pepe as a mascot. The Pepe meme had become popular in the same online forums where the “alt-right” organized and gathered, like 4chan. After spotting the Pepe image in a variety of overtly racist and anti-Semitic ways, the Anti-Defamation League tagged the frog as a hate symbol.
In October, the ADL teamed up with Furie, who wanted to reclaim what he saw as the positive meaning of the symbol. Using a social media campaign with the hashtag #SavePepe, Furie created a “series of positive Pepe memes and messages.”
“It’s completely insane that Pepe has been labeled a symbol of hate and that racists and anti-Semites are using a once peaceful frog-dude from my comic book as an icon of hate,” Furie said in a statement distributed by the ADL. The “true nature of Pepe,” he explained, “celebrates peace, togetherness, and fun.”
But after the election, Pepe continued to be associated with racist and anti-Semitic messages. Finally, earlier this month, Furie lawyered up and took action. He owned the image and sent cease-and-desist letters to various unauthorized users with far-right politics.
So far, the images have been coming down, and Furie hasn’t had to go to court to enforce his copyright. But if the dispute does get messy—and the tough talk from Mike Cernovich’s lawyer suggests it may well—who will have the upper hand legally? Do political commentators have the right to use Pepe as they wish, claiming “fair use?”
For Furie’s lawyer, Louis Tompros, it’s a clear slam-dunk. In his view, the uses of the frog aren’t “transformative” at all—they want to use a clever and amusing character to get more attention and transmit their message in a fun way.
“We don’t think any of it was transformative,” Tompros said in an interview with Ars. “It was simply taking this image of an established character and using it. He [Cernovich’s lawyer] is overstating the role of parody here. You can’t take a character, claim you’re using it in a parody, and then have free rein to use the character.”
There’s no question that copyrightable characters can be protected. Anyone who draws their own Superman comic and sells it on the street may run into trouble with lawyers from Warner Bros., notwithstanding the fact that the illustration work is their own.
But there are shades of gray when it comes to Pepe the Frog. Mitch Stoltz, a fair use expert at the Electronic Frontier Foundation, was skeptical that a copyright suit over Pepe could hold up against a fair use defense.
“It’s a crudely drawn character, and it doesn’t have a lot of defining characteristics,” Stoltz said in an interview with Ars. “It doesn’t seem like it has a whole lot of personality.”
People are using a crudely drawn frog to mean—well, to mean whatever they want. Pepe had hundreds of uses before he was adopted by the alt-right. News stories that are dated before 2016, like the Vice story quoted above, show that Furie didn’t have a problem with it.
As for the alt-right users, “they’re using it for the symbolism it has since acquired,” Stoltz said. “That’s a transformative purpose.”
In copyright law, characters that have been successfully enforced are ones with a strong character arc—think Sherlock Holmes or James Bond.
If someone used Luke Skywalker without permission, the owners of the Skywalker character (presently Disney) could sue for copyright infringement. But if someone drew cartoons of a guy in white robes holding a “laser sword,” they couldn’t. Similarly, you’re not allowed to write and sell the next “Harry Potter” novel without the OK from JK Rowling—but she can’t stop you from publishing a story about a boy wizard and his friends. Stock characters, like a “hard-boiled” detective or a “fun-loving” sidekick, can’t be owned.
The US Court of Appeals for the 9th Circuit drew sharp limits on character copyrights in a 1954 case, Warner Bros. v. Columbia Broadcasting, which involved rights to The Maltese Falcon, the famous Dashiell Hammett mystery story that featured detective Sam Spade.
Hammett sold movie and television rights for The Maltese Falcon, including the characters and their names, to Warner Brothers. When he went ahead and sold other Hammett stories for radio broadcast called “The Adventures of Sam Spade” and “The Kandy Tooth,” Warner Brothers sued for copyright infringement.
The appeals court ruled that characters in a story “were vehicles for the story told” and that Hammett could use them again—and sell them again. “The characters of an author’s imagination and the art of his descriptive talent, like a painter’s or like a person with his penmanship, are always limited and always fall into limited patterns,” the court noted. “[If] the character is only the chessman in the game of telling the story, he is not within the area of protection afforded by the copyright.”
So: are alt-right users infringing “Pepe the Frog,” a distinct character? Or has the idea of a super-chill frog dude saying weird stuff, or funny stuff, or very racist stuff, become a generic cultural idea?
For Tompros, the character copyright was established by Furie over the course of several issues of comics.
“He may not be as famous as a character like Sherlock Holmes or Luke Skywalker, but being famous is not the same as having defining characteristics,” Tompros told Ars in an e-mail exchange.
Tompros points out that Furie has a copyright in the actual image of Pepe, as well. In almost all the cases he has seen, Tompros says, the infringers have “copied those images quite clearly.”
Like many legal disputes, this theoretical dispute will boil down to resources in the real world. Again, Furie will have the upper hand in most cases, since most bloggers and T-shirt sellers don’t want to wager their earnings going up against a big-firm lawyer in a risky fair-use battle.
My own take on Pepe is—and I’m on perilous turf here, disagreeing with the EFF lawyer—if it somehow did come down to a real, full-scale court case, Furie would likely succeed. Courts often see copyright’s role as defending the rights of the “little guy,” and Furie’s story is compelling. His frustration with seeing his creation used by racists is real, and the fact that he endorsed other, non-racist uses in the past doesn’t diminish his case.
The fact that the alt-right users call the frog “Pepe” and appear to have closely traced the frog’s visage contribute to Furie’s case. When Furie tells his creation story, shows his early comics, and describes how they were distributed on sites like 4chan, that’s going to further bolster his case. The alt-right users could have created a meme of a generic, chill frog-dude—but they didn’t. They picked Pepe.
In some ways, I think fair use should operate the way Stoltz describes it. His view seems to me like fan fiction, which (one can argue) encourages the creation of new works without hurting the original creator. But in the real-world legal landscape, unauthorized sequels get quashed by copyright.