Pepe the Frog DMCA Takedowns

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Overview

Pepe the Frog DMCA Takedowns refer to a series of Digital Millennium Copyright Act takedowns sent by the American law firm Wilmer Cutler Pickering Hale and Dorr LLP to various conservative and alt-right websites while representing Pepe the Frog creator Matt Furie.

Background

In late August 2017, Furie took Texas-based assistant principal Eric Hauser to court for copyright infringement for published a book titled The Adventures of Pepe and Pede for using a likeness of Pepe the Frog without permission. The case was settled for $1,521.54, which Furie announced he would be donating to the Council on American-Islamic Relations (CAIR). On September 18th, Motherboard^[10] published an article by staff writer Matthew Gault titled "Pepe the Frog’s Creator Goes Legally Nuclear Against the Alt-Right," reporting that Furie's lawyers, representing the artist pro-bono, sent cease and desist orders to Richard Spencer, Mike Cernovich, Baked Alaska and the /r/The_Donald subreddit to remove all images of Pepe the Frog.

Developments

Online Reaction

That day, the Motherboard article was submitted to the /r/EnoughTrumpSpam^[1] subreddit, where it gathered upwards of 3,600 points (88% upvoted) and 380 comments within 24 hours. Other posts supporting the DMCAs were submitted to /r/fuckthealtright^[7] and /r/gamerghazi.^[8]^[8] That day, several posts featuring Pepe the Frog reached the front page of the /r/The_Donald^[3]^[4]^[5] subreddit, many of which taunted Furie for sending the takedowns. Also on September 18th, Twitter user @BakedAlaska^[12] tweeted a screenshot of a Pepe the Frog trademark details page, indicating that Furie's trademark had been marked as abandoned for "failture to respond" back in October 2016 (shown below).^[11]

PEPE THE FROG TRADEMARK INFORMATION Mark Identification: PEPE THE FROG Last Applicant/Owner: Furie, Matt 844 1/2 S Mariposa Ave Los Angeles, CA 90005 86848125 December 14, 2015 Serial Number: Filing Date: Status: Abandoned-Failure To Respond Or Late Response October 26, 2016 Status Date:

Meanwhile, Several posts speculating that the DMCA takedowns would cause Pepe the Frog memes to dramatically rise in value were submitted to /r/MemeEconomy^[13]^[14]^[15]^[2] (shown below, left). Additionally, others predicted a Streisand Effect would erupt in reaction to the takedowns in a thread on /r/KotakuInAction.^[9] The following day, /r/dankmemes^[6] mod comebepc stickied an announcement for readers to "Help us save Pepe. Pepe is NOT a hate symbol," along with an image of Pepe says "be nice man" (shown below, right).

The Daily Stormer

On July 10th, 2018, the Vice technology news site Motherboard^[16] reported that the neo-Nazi news blog The Daily Stormer had removed many images of Pepe from the site. The article included an interview with Wilmer Cutler Pickering Hale and Dorr lawyer Louis Tompros, who speculated the law firms legal actions had caused the removal of the images. Additionally, Tompros revealed why websites like The Daily Stormer were sometimes difficult to enforce copyright on:

"The problem was that they would be up and then their entire site will be down and move somewhere else and reorganize. The reason it takes us longer on this and some of the others is the way their website moves around a bunch."

In the coming days, additional articles about the takedowns were published on The Verge^[17] and The Daily Dot.^[18]

Search Interest

Not available.

External References

^[1] Reddit – Pepe the Frogs creator Goes Legally Nuclear

^[2] Reddit – If you strike Pepe down he will become more powerful than you can possibly imagine

^[3] Reddit – Matt Furie threatens to sue Reddit if they don't censor Pepe. Let's trigger Matty!

^[4] Reddit – Hey Matt Furie

^[5] Reddit – Fuck Matt Furie

^[6] Reddit – Help us save Pepe

^[7] Reddit – /r/fuckthealtright

^[8] Reddit – /r/gamerghazi

^[9] Reddit – Pepe the Frogs creator threatens to sue anyone who uses Pepe and Altright

^[10] Motherboard – Pepe the Frogs Creator Goes Legally Nuclear

^[11] Justia – PEPE THE FROG – Trademark Details

^[12] Twitter – @bakedalaska

^[13] Reddit – /r/MemeEconomy

^[14] Reddi – /r/MemeEconomy

^[15] Reddit – /r/MemeEconomy

^[16] Motherboard – Neo-Nazi Site Daily Stormer Takes Down Pepe Images After Getting Copyright Claims From Its Creator

^[17] The Verge – Pepe the Frog creator gets neo-Nazi site Daily Stormer

^[18] The Daily Dot – Daily Stormer rids of Pepe the frog images amid copyright claims

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Mike Cernovich | Pepe the Frog Page 2 of 2 RANDAZZA LEGAL GROU P During the 2016 presidential campaign, Pepe became a symbol of the alt-right. Mr. Furie tolerated such use, 5 but otherwise specifically distanced himself from the alt-right movement.6 The use of Pepe by Mr. Cernovich goes beyond, for example, Milky Way Productions' use of Pillsbury's "Poppin' Fresh" character, in which fair use was found for the wholesale use of the character in a fictional scene as commentary on the corporation. See Pillsbury Co. v. Milky Way Prods., No. C78-679A, 1981 U.S. Dist. LEXIS 17722 (N.D. Ga. Dec. 24, 1981). Here, Pepe of the alt-right has taken a life of its own, far distinct from the original character. We will charitably construe your letter as an attempt by Mr. Furie to alter the perception of Pepe by the public. We also notice, however, that Mr. Furie has undertaken a Kickstarter to utilize Pepe commercially. And, the release of statements to the media rather than simply attempting to work with Mr. Cernovich, suggests an ulterior motive in support of Mr. Furie's commercial venture. In fact, our view is "charitable," in name only, and your patent attempt to gain publicity for the commercial venture through Mr. Cernovich is foolish To that end, please advise your client that Mr. Cernovich has, at his discretion, removed the video from YouTube and Facebook, but reserves the right to republish them at his pleasure. Further, he won't see a dime from Mr. Cernovich. Should you choose to file suit against Mr. Cernovich, we will be delighted to embarrass the f--- out of you - and set up a malpractice claim by your client against you. Because if you really don't understand fair use, you should leave copyright law to lawyers who do We expect a prompt acknowledgement that you are withdrawing your demands. Thank you for your attention to this matter. Sincerely, Marc J. Randazza cc Client (via separate email) 5 Notably, he took no action in the year and a half since Breitbart published the version of Pepe used in the banner. See http://www.breitbart.com/tech/2016/03/29/an- establishment-conservatives-guide-to-the-alt-right/ 6 See https://www.dailydot.com/unclick/matt-furie-pepe-the-frog-alt-right

Pepe the Frog DMCA Takedowns
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Re: Mike Cernovich | Pepe the Frog Dear Mr. Tompros: This firm has the honor and privilege of serving as counsel to Michael Cernovich. We are in receipt of your letter dated September 12, 2017 ostensibly on behalf of Matt Furie in regard to claims of misappropriation of the image of Pepe the Frog. I say "ostensibly," because it is clear that this was more of a publicity stunt than a serious legal threat. We appreciate your client's seeming displeasure that Pepe has been transformed into a political icon.1 Like Mr. Furie, Mr. Cernovich takes issue with being mistakenly associated with the alt-right. In fact, the article you cite2 specifically answers the titular question in the negative. Moving forward, we expect that neither party will falsely claim the other is affiliated with the alt-right As to your claims of infringement, we disagree. We will assume, for the moment, that your client properly and timely registered copyright in the image of Pepe the Frog All defenses on this issue are reserved. We note that "Boys' Club", in which Pepe first appeared as a meme, was published in 2006,3 but we do not see a copyright registration by your client relative to that work. Neither is there one for the earlier "Playtime" work It also appears that your client placed Pepe in the public domain. 4 These two circumstances seem tied together_no copyright was registered because Pepe was intentionally placed in the public domain. Remarkably absent from your letter is any consideration of fair use. Of course, since it wasn't a serious legal threat, this doesn't surprise me all that much. Even if your client could enforce a copyright in Pepe, any claim against our client in this context would fail. Both the video and the banner image qualify as fair use; the image of Pepe is used as political commentary and satire. 1 "Seeming", of course, because he is certainly capitalizing on it. 2 http://www2.dangerandplay.com/2016/08/31/is-mike-cernovich-part-of-the-alt-right/ 3 Oddly, the version available for sale notes that it is copyright © 2016. 4 See https://www.dailydot.com/unclick/4chan-pepe-the-frog-renaissance/ 4035 South El Capitan Way, Las Vegas, Nevada 89147 mjr@randazza.com | 702.420.2001

Pepe the Frog DMCA Takedowns
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Top Comments

Electric Dictator Bedebao

Sep 19, 2017 at 01:14PM EDT

MATT YOU FUCKING IDIOT
Have you not learned anything? You're going to end up in an asylum after they subject you to the Shia treatment.

+104

Bilbo Swaggins Moderator

Jul 11, 2018 at 02:04PM EDT

Matt still fighting for the legacy of pepe when everyone else stopped caring

cool

+72

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