- The Washington Times - Sunday, May 26, 2019

Matt Furie had intended his cartoon creation Pepe the Frog to be a “peaceful frog dude.” Which made it all the more upsetting for him when Pepe began to show up on right-wing logos and designs.

Now Pepe and Mr. Furie are preparing for a court date this summer, with the artist saying white supremacists are violating the frog’s copyright.

Mr. Furie got conservative provocateur Mike Cernovich to take down a video from his Twitter page that had an image of Pepe mocking 2016 Democratic presidential candidate Hillary Clinton, and he stopped Missouri artist Jessica Logsdon from using the frog in any of her oil paintings.

But he’s run into problems with right-wing figure Alex Jones and his Infowars website, which sold a poster with Pepe, glassy-eyed smile and all, sitting amid images of President Trump, White House counselor Kellyanne Conway, right-wing pundit Ann Coulter, Trump ally Roger Stone and Mr. Jones.

Mr. Furie wants Infowars to hand over the profits it made from the poster sales. Court documents say that’s about $13,000.

“They have made money off of it for sure,” said Louis Tompros, the attorney representing Mr. Furie.

Marc Randazza, who represents Infowars, says the lawsuit is aimed at the wrong target.

He says Mr. Furie should go after the man who created the poster — from whom Infowars purchased it for about $8,000.

Besides, says Mr. Randazza, the poster is political speech, so it’s protected from copyright use challenges based on the doctrine of “fair use,” which allows limited use of protected work for First Amendment purposes.

The Infowars lawyer also says Mr. Furie has lost control of Pepe and has embraced the character’s organic evolution in pop culture.

He points to a 2016 interview in The Atlantic in which Mr. Furie said people “reinvent” Pepe: “It’s just out of my control what people are doing with it.”

Pepe first appeared in comics in 2005 and by 2008 was an internet sensation. Eventually pop culture figures such as Katy Perry and Nicki Minaj were sharing images of the bulging-eyed, red-lipped frog.

But after Pepe popped up in alt-right use, Mr. Furie figured it was time to reclaim him.

Jessica Litman, a law professor at the University of Michigan, said Mr. Furie can assert his copyright to Pepe the Frog at anytime.

“You don’t lose your copyright just because you decline to enforce it,” she said.

“Furie’s got a pretty appealing sort of emotional argument, which is that he is trying to rescue this work,” Ms. Litman added.

Judge Michael W. Fitzgerald of the U.S. District Court for the Central District of California ruled this month that there are enough questions for a jury to decide.

“It is for the jury to determine whether defendants have proven the defense of fair use,” the judge wrote.

Ms. Litman said a jury could be used to determine whether the poster contained more of the underlying copyrighted work than necessary.

Mr. Randazza cast the case is a test of the First Amendment.

“If Infowars is successful, it will have protected freedom of expression far more broadly than this one case. And, that is the reason that Mr. Jones has chosen to fight on,” he said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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