After making headlines in the 2016 U.S. presidential election, Pepe the Frog is back in the news again. This time, for the copyright enforcement efforts that Pepe’s creator is pursuing against unauthorized uses of the character by certain social media personalities and social media forums.
Pepe the Frog was originally created by cartoonist Matt Furie for “Boys Club,” a comic series featuring four anthropomorphic roommates. Pepe quickly became a fan favorite in the mainstream media, becoming one of the most popular memes on 4chan, an online image-board community, and even garnering social media shout-outs from pop stars like Katy Perry and Nicki Minaj.
Around 2014, however, Pepe and his “feels good man” catchphrase also became popular within certain circles on social media that tend to fall on the far-right of the political spectrum and under the broadly defined “alt-right” movement. In 2016, the Anti-Defamation League named certain iterations of Pepe as hate symbols and launched the #savepepe campaign on social media to reclaim Pepe.
Furie, who disagrees with the political ideologies represented by some of these uses, launched a campaign in August to enforce his copyright in Pepe. In August, he threatened litigation over the unauthorized distribution of a children’s book featuring Pepe called “The Adventures of Pepe and Pede” and reached a settlement agreement with the author.
In September, Furie and his pro bono legal counsel sent cease-and-desist letters to social media personalities Mike Cernovich and Anthime Gionet, various websites, and a Reddit forum, asserting claims of copyright infringement. In addition to sending cease and desist letters directly, Furie has also sent numerous DMCA complaints to websites and online marketplaces where Pepe memes are posted and products are sold. Cernovich, who disclaims involvement with the alt-right movement, responded to Furie’s demand by asserting rights under the fair use doctrine and the First Amendment.
Pepe’s story serves as an interesting reminder that characters and images distributed widely online and on social media are not necessarily available for use. Courts in the U.S. still have yet to address definitively whether memes violate copyright law, but copying or reproducing a copyrightable image is presumably copyright infringement unless there is an affirmative defense, exception, or separate legal right. Although brand owners can lose trademark rights through widespread third-party use under the doctrine of genericism, copyrights are not subject to the same vulnerability.
The Pepe memes, however, also raise interesting questions as to whether the appropriation of copyrightable content for political purposes can be a transformative fair use. When a copyrighted image takes on new meaning, are these unauthorized derivative works or transformative fair uses?
The bounds of the transformative fair use doctrine are far from clear under the Copyright Act and existing case law, but it may be relevant to the analysis that political speech enjoys the highest form of protection under the First Amendment. This is true regardless of whether the speech is considered to be hateful or offensive, as the Supreme Court affirmed this summer when it struck down the prohibition on registering offensive trademarks. If Furie continues his legal fight, we may yet see whether the Pepe memes constitute fair uses of a copyrightable character.
It is also important to keep in mind that some of the Pepe memes may be fair uses, while others may not be. Commercial speech, for example, is subject to a lower standard of review under the First Amendment, and commercial uses are a key consideration in the fair use analysis as it is defined under the Copyright Act.
Although Pepe’s saga raises more questions than it answers, it is a good reminder to brand owners and content creators to revisit and consider the source and use of their social media content (is it a copyrightable image? does the use constitute fair use?). Content creators should also monitor and generally be cognizant of how their content is being used by others online and on social media. When copyrightable content takes on new meaning, First Amendment and fair use issues may come into play that could make it difficult to reclaim the original work or effectively assert copyright claims.