What Do You Meme? Copyright, 'Pepe The Frog,' And Fair Use

There is little doubt that the decision in the Pepe the Frog case will have an impact on 'memification' of copyrighted works going forward

Expressing yourself on the internet can take many forms, but none are arguably more prevalent than the internet “meme.”  Take the recent passing of “Grumpy the Cat,” a furry feline with a furrowed brow and piercing glare that can best be described as the face that launched a thousand memes — this cat’s permafrown became a virtual banner of voicing displeasure online.  Of course, actual pictures of the cat we not owned by those creating the memes — they were merely the vehicle for the (arguably sarcastic) commentary by the meme creators.   Alas, that seems to be the issue surrounding another internet meme — that of “Pepe the Frog” — and it’s arguably testing the boundaries of copyright and the fair use doctrine.

So what do we mean when we are talking about a “meme”?  It can be antiseptically described as “an idea, behavior, or style that spreads from person to person within a culture—often with the aim of conveying a particular phenomenon, theme, or meaning represented by the meme.”  That definition, however, is inadequate — it is more like a fundamental building block of internet culture:

It’s not just an idea: It has form. It can be an image, a video, a cartoon character, or a Twitter catchphrase—the type of media doesn’t matter as long as people can interact with it and make it their own. Once it’s been repeated, reposted, and remixed across social networks until it’s woven into the zeitgeist, it’s a meme. A meme has the feeling of an “inside joke,” but it’s shared with thousands or even millions of people, not just your small social circle. Despite this huge reach, memes still provide the enjoyment of mutual recognition and ‘getting it.’

For those who “get it,” it is a highly creative (and genuinely funny) way to express something for the world to see and, if you’re lucky, go viral online.  This is where things get interesting from a copyright perspective with “Pepe the Frog”.

In late 2003, artist Matt Furie published a comic book called Play Time that featured Pepe the Frog as one of a number of characters, and by 2008, this “chill frog dude” (as described by the artist) with bulging eyes but “lackadaisical attitude” had taken the internet by meme-storm.  Here is where things get interesting — when Mr. Furie was interviewed about this phenomenon, he supposedly didn’t mind it and seemed to let it take on a life of its own.  In fact, the popularity of the meme even appears to have created a “financial windfall” for him.  All seemed well and good with Pepe the Frog memes, until 2015 when the character started appearing in memes with then-presidential candidate Donald J. Trump and other conservative political figures.  Making a long story short, Pepe the Frog appeared in a poster sold by the operating arm of Alex Jones’s InfoWars website, and Mr. Furie took exception to the political use of Pepe the Frog and eventually filed suit, claiming misappropriation of the character that detrimentally affected his ability to license the property.  The case is now heading to a jury after the judge ruled on motions for summary judgment that a jury gets to decide whether Mr. Furie abandoned his copyright claim and whether there was “fair use” of the copyrighted work.

The case presents an interesting proposition in that the fair use defense will be resolved at trial.  In the words of U.S. District Judge Michael Fitzgerald:

Stepping back from the factors, the argument at the hearing by counsel for Defendants was, essentially, that controversial defendants should not have their defense of fair use decided by the jury; i.e., there must be some sort of First Amendment overlay on copyright law to protect political speech. By analogy, counsel was arguing for the creation for copyright law of something like New York Times Co. v. Sullivan for the law of defamation. That simply is not the law as this Court understands it.

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How a jury will address copyright abandonment, de minimis use, and fair use is anyone’s guess, but there is little doubt that the decision will have an impact on “memification” of copyrighted works going forward.

Memes have become a cornerstone of internet expression.  No matter how you may look at it, however, the jury will be rendering a decision that will impact the enforcement of copyrights in the images underlying memes, and therefore, the use and dissemination of them in the process.  From my perspective, I have reason to believe that fair use will prevail (especially given many of the underlying facts, the application of the fair use factors to them, and the author’s own complacency in use of the image prior to the lawsuit), allowing memes to remain a mainstay of popular culture for many years to come.  So stay tuned — if I’m right, something tells me that even though she is no longer with us, that is a result that would even make Grumpy Cat smile.


Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

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