Pepe the Frog vs. copyright law has troubling fair use implications


Matt Furie, the creator of Pepe the Frog, has made numerous attempts over the past two years to reclaim the good-natured cartoon amphibian from the alt-right meme makers who adopted him and turned him into a hate symbol.

But his latest attempt marks a surprising departure from his previous, more remix-friendly tactics to deal with the widespread memeing of Pepe. Furie is now turning to US copyright laws to challenge the legal right of alt-right websites to distribute Pepe’s image. That’s a bold, decisive move for Furie — and one that carries unfortunate implications for the reach of US copyright law as it pertains to what does and does not fall under the umbrella of fair use.

Furie is on the copyright warpath against several major alt-right figures

Furie has issued Digital Millennium Copyright Act (DMCA) takedowns to Google, Reddit, Redbubble, and Amazon, alleging infringement for the spread of Pepe’s image hosted on their platforms. Additionally, he has issued cease-and-desist orders to the notorious alt-right subreddit r/The_Donald; the website AltRight.com, which is owned and run by the white nationalist leader Richard Spencer; and several public figures known for spreading Pepe’s image, including social media personality and right-wing commentator Mike Cernovich and Tim Gionet, a.k.a. the alt-right YouTube personality Baked Alaska. Some of Furie’s cease-and-desist orders have been published by Motherboard, revealing that he’s charging each recipient with different misuses of Pepe, some of them clearly for profit.

A few of the more blatant examples that Furie cites include dozens of Pepe-themed items being peddled by various Redbubble sellers, a now-yanked Android game developed by Gionet (the same game was denied release on iOS because of its allusions to Pepe), and a book that Gionet self-published about alt-right memes. The book, which has since been removed from Amazon in response to Furie’s DMCA claims, frequently discusses Pepe; Gionet even devotes a chapter to explaining the rise of the frog as an alt-right symbol and credits Pepe’s creation to “Matt Furey.”


Tim Gionet a.k.a. Baked Alaska’s book about alt-right memes credits the creation of Pepe to “Matt Furey.”

Tim Gionet, a.k.a. Baked Alaska, wrote a book about alt-right memes that credits the creation of Pepe to “Matt Furey.”
Amazon

Though so far the targets of Furie’s complaints have mostly complied by removing images and allegedly infringing works from various platforms, not all of them have done so quietly. In an incendiary Medium essay, Cernovich in particular invited Furie and his lawyers to engage, with his own lawyers claiming, “Should you file a suit against Mr. Cernovich, we will be delighted to embarrass the fuck out of you.”

Furie’s decision to invoke the DMCA is part of an intensifying fight between copyright holders and the alt-right

Furie’s move to issue DMCA takedown notices comes after Furie successfully sicced his lawyers on a for-profit “children’s book” called The Adventures of Pepe and Pede in August. The book, written by an assistant principal at a Texas middle school who’s since been fired, contained alt-right and Islamophobic symbols and themes within its story, including a prominent emphasis on a green frog named Pepe. Furie reached a settlement with the author that resulted in the author handing over his meager profits of $1,500 to the Council on American-Islamic Relations (CAIR).

Furie’s crackdown also follows a similar recent turn to copyright enforcement by a game developer who’d grown sick of the “humor” of YouTube star PewDiePie, the staggeringly popular gaming vlogger whose political views appear to lean toward the alt-right despite his frequent denials. After PewDiePie (whose real name is Felix Kjellberg) dropped a racial slur during a recent gaming live stream, a developer named Sean Vanaman issued DMCA takedowns against all of PewDiePie’s videos that feature games made by Vanaman’s creative studio, Campo Santo. On Twitter, Vanaman issued a plea for other creators to follow suit, hoping to essentially forcibly separate PewDiePie’s incendiary views from the games around which his commentary is built:

But using DMCA takedowns to suppress alt-right content carries some concerning implications, no matter what you think of the content itself. In fact, Vanaman has since quickly backtracked from his fight against PewDiePie, telling BuzzFeed that he regrets turning to the DMCA to enforce a copyright claim — a practice many internet creators staunchly oppose. This is because strictly applying the DMCA in these situations restricts the idea of fair use.

Pepe memes are generally allowed to exist because of the “fair use” doctrine of US copyright law

Fair use is shorthand for the fair use clause of US copyright law, which allows a copyrighted work to be remixed or reproduced as long as it’s for a “transformative” purpose like commentary, education, or parody. Thus, fair use is the protection under which memes and remixes of other people’s work are able to flourish online. But what constitutes an allowable remix or transformative use of the original work under fair use is essentially anybody’s guess. For years, court rulings have been inconsistent when it comes determining what is and isn’t a “fair” use of someone else’s copyright.

Inch by inch, various rulings have established that the most common examples of fair use in modern contexts — remixes, sampling, memes, fanfiction, fan art, and brief clips and citations of someone else’s work in commentary and reviews — are all standard exceptions to copyright law that fall under the umbrella of fair use.

But there’s still a large gray area surrounding what, exactly, constitutes fair use, and the clause is frequently enforced in a way that puts the impetus on remixers to defend the transformative qualities of their works, rather than on copyright holders to acknowledge that the remixers’ works are examples of fair use.

What usually happens — as anyone who’s ever been unfairly hit with a DMCA takedown notice knows all too well — is that remixers are issued scary cease-and-desist orders first, and are then expected to argue their case before a corporation or legal body that may or may not believe them. If the original copyright holder, or the platform hosting the remixer’s work, doesn’t agree that fair use applies, the remixer’s only recourse is usually to take down their content, even if that content is extremely popular. (The main exception: If the remixer happens to have a lot of time and money to spend arguing the point in a courtroom, they’re free to do so.)

For a prime example, witness the recent case of the popular McMansion Hell parody blog, which briefly deleted all its content in June upon receiving a DMCA takedown notice. It was only restored once news of its case went viral and notable copyright defense lawyers stepped in to shepherd the owner through the ins and outs of arguing that the blog constituted fair use.

The practice of invoking the DMCA to fight the alt-right should concern anyone who makes stuff on the internet

In issuing DMCA takedown notices and cease-and-desist orders, Furie has mainly targeted prominent alt-right creators who are directly profiting from Pepe the Frog’s image. These are generally clear-cut examples of copyright infringement, since fair use is harder to prove in instances where a person is making money off someone else’s work.

But not all of the examples Furie has cited — like simply using an image of Pepe on a website — are quite as straightforward. The key criteria of whether a work constitutes fair use of an existing copyright is that it be “transformative.” The alt-right’s use of Pepe has been to transform him from Furie’s original comic character — a stoner frog living with his bro roommates — into a reincarnated Egyptian god who holds the key to all modern-day politics. In terms of the basic concept of fair use, few things seem more clearly transformative (much as many might hate to admit it). Thus, in leaning on the DMCA to pursue the makers of art he doesn’t like, Furie (like Vanaman before him) is taking regressive steps in interpreting what fair use is and what it means for anyone who creates original work.

Applying a moral limitation to the idea of what is and isn’t fair use is extremely risky. For one thing, fair use limitations are already frustratingly ambiguous, even without introducing a moral component. For another, pursuing a DMCA takedown, even where the use is clearly an infringing for-profit use, sets a precedent for allowing the kind of countercultural ideas that flourish in meme culture and remix culture to be threatened purely because a creator doesn’t like them.

If anything, the move shows how desperate Furie is to salvage Pepe the Frog from the alt-right. After trying everything from working with the Anti-Defamation League to reclaim Pepe from his official status as a hate symbol to ceremonially killing off and then reviving the character, Furie seems to have fallen back on the last best hope afforded by the DMCA: good old-fashioned censorship.

“The truth is I’ve made all the Pepes on the internet,” Furie said in a 2016 interview. “They are all mine. I made them and I own them all!” While his frustration with the alt-right’s adoption of Pepe is understandable, this is a suppressive view of remix culture that the doctrine of fair use is designed to withstand, not capitulate to. As Michael Lee, an internet lawyer specializing in copyright, previously told Motherboard regarding Vanaman’s DMCA takedowns, “[T]he biggest issue here [is] that the DMCA is being used to stop the expression of free speech.”

(Furie has not responded to Vox’s request for comment.)

But meme culture itself — heck, even the endless examples that Furie cites in his “inexhaustive” list of Pepe-infringing items on Redbubble — illustrates how futile this effort is. Memes by their very nature are unstoppable, and the only way to really counter them is to dilute them with more, not fewer, mutations of the original.

In 2016, the artist Leon Chang (literally) illustrated this idea when he drew a comic in response to alt-right-leaning Dilbert creator Scott Adams participating in the memeing of Pepe. Chang’s comic remixed one of Adams’s Dilbert comic strips in order to discuss the complexity and importance of supporting remix culture, even though it means your work could fall into the wrong hands. Chang acknowledged that because memes fall under fair use by default, the only real way to fight the ones we don’t like is by generating counter-memes. “There’s one thing you can do,” he wrote in his comic. “Take some asshole’s art and make it good.”

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