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Memed Into the Public Domain? The Battle for Pepe the Frog.


He followed me closely, staring at me- -of a chilled and laid back frog became a
hate symbol hacked online by far right groups. The internet is a place where people believe
in expansive freedom of expression. This is not a fight over a cartoon frog, this
is a fight about political speech. Is this cartoon frog a symbol of free speech
or artwork high jacked by racist hate groups? Pepe as he’s known has been labelled a Nazi, condemned by a presidential candidate and now is at the center of an important legal
battle over the first amendment in this era of unlimited replication, imitation
and mutation. It’s a fight that involves the Alt-Right,
Trump voters, one of Washington DC’s most powerful law firms, and the website 4chan, AKA ‘the asshole of
the internet.’ Pepe the frog is the creation of a 38 year
old cartoonist from Ohio named Matt Furie, who declined to be interviewed for this story. The anthropomorphic frog first appeared 12
years ago in Furie’s webcomic ‘Boy’s Club’ In the series’ most famous sequence, Pepe is caught standing at a toilet with his
pants around his ankles. As he later explains, ‘feels good man.’ It wasn’t until a few years later, when someone posted his image to the anonymous
online image board 4chan that Pepe became a global phenomenon. The feels bad man Pepe emerged, followed by
sad frog and so on. Pepe was tweeted out by Katy Perry and instagramed
by Nicki Minaj and Matt Furie defended the anonymous people
on the internet who had turned his creation into an unstoppable
meme. But then Pepe became something else entirely. Pepe is a white nationalist symbol- It has one of the things that the racist right
has adopted- The anti-defamation league’s database of hate
symbols. It’s been a nightmare for Matt Furie. Intellectual property attorney Lewis Tompros
says Matt Furie contacted his firm WilmerHale after Pepe appeared in what he describes as
an Islamophobic children’s book, in which Pepe does battle with a bearded alligator and what appear to be his burka clad minions. But that was just the beginning. Pepe’s recent evolution into a right wing
symbol most likely started on 4chan’s /pol/ page, a board devoted to facilitating politically
incorrect conversation that became a haven for Donald Trump supporters
in 2016. Images of Pepe wearing red MAGA hats proliferated, and Donald Trump, Jr. even posted an image that included a Trumpified version of Pepe
to social media. The Clinton campaign responded by branding
Pepe a “symbol associated with White Supremacy.” The emerging racist ideology known as the
Alt-right- Enter Mike Cernovich, whether it’s exposing Congressman John Conyers
‘ sexual harassment scandal or publicly threatening to publish the ‘shitty
men in media’ list, Cernovich has a knack for leveraging his large
social media presence to catapult himself into the news cycle. Most people in the fake news media who get
to the high level are pedophiles. We’re not Alt-right and we’re not old school
National Review, take the high road boring right, We’re very aggressive. We’ve taken over, for example, the microphones
at left wing rallies. We’re in a meme world, we’re in a world where
you have to be catchy, punchy, that’s how you’re actually influencing voters, that’s how you’re actually persuading people
to accept your ideas as true. So we’re a bunch of, kind of merry meme makers. Cernovich posted a fan made video on his YouTube
channel that incorporates Hillary Clinton’s audio
book description of what it felt like sharing the debate stage
with Trump. There’s an excerpt where she goes ‘and he
was stalking me, breathing down my neck I felt so creeped out’ referring to Trump, and then you have Pepe kind of stalking Hillary
Clinton. No matter where I walked, he followed me closely,
staring at me, making faces, it was incredibly uncomfortable. And I thought that this is art. Furie’s attorney sent Cernovich a take down
notice, he complied but also hired free speech lawyer
Marc Randazza to draft a response. The way I try to explain fair use to people
is that you can take a whole bunch of already created
works and when you take them all together and then
you blow new life into that, a new thought is expressed in that, you probably have engaged in what’s called
fair use. You can’t copy other people’s ideas and claim
free speech, that’s now how the first amendment works,
that’s not how copyright law works. They’re absolutely free to spout hate in some
other form we just don’t want them using Pepe the frog
to do it. On a human level I have tremendous empathy
for Furie. I think he made a tremendous mistake by not
getting ahead of the Pepe usage, I think he, Matt Furie, could be a world wide
name, a world wide brand and that he could have actually beat the people
who are using Pepe in ways he doesn’t like by spreading more Pepe images. Furei’s attorneys have gone a step further in the case of a Kansas City based artist
named Jessica Logsdon, who refused to take down the Pepe themed paintings
she sells on Ebay for 99 cents plus 37 dollars shipping. They’ve filed a lawsuit against Logsdon who
declined to appear in this video, but responded via email that, while she may
appear confident, she’s ‘rational enough to be scared because
WilmerHale is a titan of law.’ She also attached a picture of a new painting
she calls ‘WilburFail’ We’re not trying to do this because she’s
some kind of a small fish, had she simply complied with the DMCA notice
and our request, there’s no question we would not have brought
a lawsuit. I had a brief conversation with her and she
sent me as a gift I think if you can see it over my shoulder,
what is now one of my favorite works of art. If I were still teaching copyright law classes,
I would bring this in as an example of classic fair use. I believe that things can be memed into the
public domain. You have the picture of the little kid with
his fist like that, you know, I don’t know who originally took that picture, whoever did, if they were to try to lasso
control of that picture at this point, I think they would fail miserably. But I think the result would be a thousand
times more people reusing it. Because the internet is a place where people
believe in expansive freedom of expression and sometimes the greatest way to set a fire
on the internet is to try and blow out one candle. Furie is demanding Logsdon cease her display
and sale of any Pepe imagery and that the court award damages and unlawful
profits. 4channers have responded by projecting images
of Pepe on the WilmerHale office building. The case has yet to go to trial, but it could
set a legal precedent better defining the blurry line between the
free speech rights of internet meme makers and the copyright claims of artists. This is a fight about a big, multi-national
multi-billion dollar corporation going after not me, because I’m a big name,
but going after very small people, who don’t have the resources it takes, this
is lawfare. This is not a David versus Goliath case, this
is a situation where, if anything, the little guy here is Matt Furie, who’s an artist trying to make sure that his
work is protected. Copyright is not just there to incentivize
you to create, but it’s also there to create a larger marketplace
of ideas. It is not there so that you can say ‘I’m upset
about how my work has being portrayed, about how my work’s being talked about, how my work is now being used in a trans-formative
manner, and I’m gonna put a lock down on that.’ You don’t get to do that Matt Furie, the frog
is on the loose.

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