Pepe the Frog’s Creator Goes Legally Nuclear Against the Alt-Right
Lawyers served notices to Reddit, Richard Spencer, Baked Alaska, and Mike Cernovich.
Image: Matt Furie/Kickstarter
Update: Several people who received legal threats from Matt Furie say they will fight back. Read our update—The Great Meme War II: Amid Lawsuit Threats, the Alt-Right Says Pepe Belongs to Them.
Pepe the Frog creator Matt Furie has made good on his threat to "aggressively enforce his intellectual property."
The artist's lawyers have taken legal action against the alt-right. They have served cease and desist orders to several alt-right personalities and websites including Richard Spencer, Mike Cernovich, and the r/the_Donald subreddit. In addition, they have issued Digital Millennium Copyright Act takedown requests to Reddit and Amazon, notifying them that use of Pepe by the alt-right on their platforms is copyright infringement. The message is to the alt-right is clear—stop using Pepe the Frog or prepare for legal consequences.
Furie originally created Pepe as a non-political character for his Boy's Club comic, but Pepe later became an internet meme and during the 2016 US presidential election the alt-right movement appropriated the frog in various grotesque and hateful memes.
At the end of August, Furie's lawyers reached a settlement with Eric Hauser—the former assistant principal in Texas who appropriated Pepe's image for use in an Islamophobic children's book. Furie's lawyers forced Hauser to stop selling the book and made him donate his profits to the Council on American-Islamic Relations.
When Hauser agreed to settle out of court, I spoke with Furie's lawyers who told me they would use the Hauser settlement as a springboard to go after anyone else who profited from or misused Pepe. It appears they've made good on that promise.
Wilmer Cutler Pickering Hale and Dorr LLP continues to represent Furie pro-bono, and recently told me that it has taken the first steps to prying Pepe loose from the hands of the alt-right.
"[Furie] was very serious when he said that we wanted to make clear that Pepe was not the property of the alt-right and couldn't be used by the alt-right," Louis Tompros, one of Furie's intellectual property lawyers, told me. "But actions speak louder than words and we wanted to make sure we were backing up that statement against entities that were misappropriating the Pepe character and image. That's what we've been doing over the past few weeks."
To that end, Tompros and his team have taken the first steps towards dismantling the alt-right's stranglehold on Pepe. They've served a cease and desist letter to Richard Spencer's Altright.com, noting the specific places where Spencer and his team have used Pepe in violation of Furie's copyright. Pepe is all over Spencer's site and is the mascot for his podcast, Alt-Right Politics.
"We've asked them to take them down," Tompros said. "That hasn't happened yet, but they're very much on notice. We plan to take action if they don't."
Tompros and team have also gone after alt-right figure Baked Alaska, serving cease and desist letters to him and DMCA notices to Amazon, Twitter and his other online social media spaces. According to the lawyers, they also got Amazon to stop selling his book, Meme Magic: Secrets Revealed, which used Pepe on its cover. Meme Magic is currently not available on Amazon.com, but a used copy was for sale on Amazon.co.uk at the time of publishing.
"Google Play has stopped selling his Build the Wall: The Game for the same reason. It actually advertised special guest appearance from Pepe and had him popping up if you achieved certain things in the game," Tompros said. Previously, Apple had refused to publish the game until it removed Pepe the Frog. Apple has a blanket ban against Pepe the frog that it has enforced against multiple app creators.
"Mike Cernovich had a number of different uses of Pepe but most notably had this video he was publicising through his Facebook and YouTube that was a 3D version of Pepe dancing with Hillary Clinton reading aloud sections of her new book," Tompros said. "That's an unauthorized use of Pepe and we've notified him."
Tompros told me that large entities such as Amazon and Google have been the most compliant so far. Stamping out the multiple vendors peddling Pepe mech on Amazon will be difficult, but the team has already succeeded in removing several shirts from the market, including the one worn by Morris May when he pepper sprayed a transgender activist in early September.
Amazon, Reddit, Twitter, Google, YouTube, Mike Cernovich, Baked Alaska, and Richard Spencer did not immediately respond to request for comment.
DMCA takedowns have become a popular way for media companies to strike back against social media influencers they don't like for a variety of reasons, including reasons that go beyond mere copyright infringement. Earlier this month, video game developer Campo Santo served a DMCA notice to popular YouTuber Pewdiepie in response to the latter's use of racial slur during his show.
Furie's lawyers have sent DMCAs to Reddit, and have also used the site's internal formal reporting procedures to reign in the popular r/The_Donald subreddit. The online community is one of the the alt-right's most popular gathering places and makes liberal use of Pepe the Frog. A giant Pepe the Frog dominates a quarter of the screen for Redditors who haven't subscribed to the subreddit. You have to click him—and thereby subscribe to r/The_Donald—to make him go away.
As of this reporting, the giant Pepe remains, but Tombros told me that they'd only contacted Reddit Friday. "My suspicion is that Reddit will take that down," he said.
If Reddit or r/the_donald's moderators don't police the use of Pepe in the subreddit, Furie's lawyers are prepared to file lawsuits and fight to free Pepe from the clutches of the alt-right in a court of law. "If necessary, we expect to bring a lawsuit for copyright infringement," Tompros said. "I want to make sure that people have enough time to comply. The goal here is not to initiate lawsuits. The goal is to get the misuse of Pepe to stop. I'd rather do that through people complying with the cease and desist notices. But we're certainly ready, willing, and able to bring suits to follow up for the folks who do not comply."
In the past, the alt-right has attacked its enemies with vicious doxing and online abuse campaigns. Tompros and his team understand that's a risk, but it's one they're willing to take.
"We're doing what we think is the right thing," he said. "We understand that we're dealing with serious folks here and we want to make clear to them that we're serious too. We're not going to stand for this."
The legal battle with Hauser has give the team both hope and precedent. "It shows we're serious," Tompros said. "It shows the copyright has been enforced before...as we have more and more of these actions where we're successfully able to remove misuse of the Pepe image and character, they'll build upon each other. I'm hopeful we'll reach a place where this stops, where the alt-right realizes it's too much trouble dealing with us to be misappropriating this character and they move on."
Furie has continued to avoid speaking with the media about Pepe, but Tompros told me the win against Hauser lifted his spirits. "That's been powerful for him," the lawyer said. "He's ready and wants to keep up the fight and wants to take down anyone who's using his character. He's also received words of support from fans and others. He's taking comfort in that."
"We're going to keep on fighting," Tompros said. "I hope we're doing what others would do when it's there to turn to stand up for the good guys."
As of this writing, Pepe shirts were still available on Amazon—though it seemed there were far fewer available than normal—and Pepe was still visible on Cernovich and Spencer's sites as well as r/The_Donald subreddit.
Correction: This story originally stated that Wilmer Cutler Pickering Hale and Dorr LLP sent DMCA notices to Twitter and YouTube. It sent those notices to Reddit, Google Play, and Amazon. Motherboard regrets the error.