Speakers: John Walsh, Brendan McGuire, Stephanie Lin and Louis Tompros
McGuire: In this episode, John was joined by WilmerHale’s own Louis Tompros and Stephanie Lin to discuss the unique, disturbing, but ultimately hopeful story of an unsuspecting comic book character, Pepe the Frog, who became an infamous internet meme and was co-opted by the alt-right.
Walsh: Pepe is now the subject of an award-winning documentary, Feels Good Man. The documentary follows creator Matt Furie and his attempts to save Pepe from the clutches of the alt-right with the help of attorneys at WilmerHale. It’s a fascinating story and one we look forward to learning more about in today’s interview.
McGuire: And now on to the episode. We hope you enjoy it.
Walsh: Hi, Louis and Stephanie, and thank you so much for being here today to talk to us about Pepe the Frog.
Lin: It’s great to be here, thanks for having us.
Tompros: Thanks, as I said in the documentary its not very often that nerdy intellectual property lawyers get asked to fight the alt-right, but when we do we are ready, and so this has been a really rewarding experience and journey for us and we are happy to talk about our work.
Walsh: Well, it’s quite the story and it really hints at legal issues that lie ahead with the internet and the whole idea of memes, and legal implications of memes, so I am excited to jump right into the conversation. So, Stephanie, for our listeners who aren’t familiar with Pepe the Frog, can you tell us a little bit about the character and its creator?
Lin: Yeah, absolutely. So Pepe the Frog is a cartoon character who started life in a comic book called Boys Club, which was created in the early 2000s by a guy named Matt Furie. Boys Club was really just a sort of goofy comic strip about four characters who seem to be in their early 20s, roommates in an apartment, and did what I think a lot of millennials did at that age. They ate a lot of pizza, got high a little bit, and lived in this house together and just told a lot of fart jokes. There is a lot of bathroom humor and Pepe was one of these characters. The Boys Club comic was posted Myspace, which was this sort of precursor to Facebook if we have any younger listeners. And it really just took off. There was something about the Pepe character that got really popular. He had a catch phrase that just said, “Feels good man” and was really one of the first things to go viral on the internet. People started using it as kind of an image to express all different kinds of feelings and it became really really popular by 2014 or 2015, almost a mainstream internet meme that was being posted by the likes of Katy Perry and Nicki Minaj.
Walsh: Well, and at some point it seems like the character was appropriated as more a symbol of racism and anti-Semitism and sort of the extreme right. How did that happen? Was there a triggering event?
Lin: The real answer to that question is probably just one of the mysteries of the internet. Why does anything go viral and why does anything happen? But, you know, people who have looked into this—writers, researchers, and documentary filmmakers who followed Matt and told his story—it seems like Pepe became very popular with certain groups on the internet who used 4chan and Reddit and other forums like that who felt like outsiders. Who felt like they were sort of alternative or not mainstream and kind of identified with the character, with the frog, and with the memes that were being created by it. And I think when it became very popular and very mainstream there was a little bit of a backlash. That the people who felt like they had originally made the meme popular felt like they had lost control, in a sense that the quote on quote normies, the mainstream, the pop stars were taking over, were taking this meme away from them somehow. And the association of Pepe with Nazi symbols, the association of Pepe with really distasteful concepts was an attempt to make him unusable by the mainstream people who were trying to repost these memes. They were trying to reclaim him somehow for their own uses. So it started out in what may or may not have been actual anti-Semitism and racism, but quickly took on a life of its own with the proliferation of those images. And during the 2016 election, I think the moment when it really sort of made the news, is when a meme featuring Donald Trump and Pepe, and several others was retweeted by Donald Trump Jr. and went out to all of his followers and all of a sudden everybody just wanted to know “who is this frog?”.
Lin: And Hillary Clinton’s campaign put out an explainer, the ADL felt the need to explain it you and put it on their website and that is when I think people who had never heard of Pepe the Frog or had never seen this meme before really started to think of it as an alt-right image and an alt-right meme.
Walsh: So Louis against that backdrop how was it that you and Stephanie and WilmerHale got involved with Matt Furie and this case?
Tompros: So it developed in a relatively strange way, what happened was Matt as a cartoonist wasn’t particularly interested in going after anybody that was using his character. He actually thought it was kind of cool as this character was getting memed and became more popular. When these alt-right groups started using Pepe as a symbol though, he got progressively more and more, frankly, sad and upset about it, and the tipping point for him came in 2017 when a children’s book came out that used Pepe as a character in a very Islamophobic and hateful way. That was really the point that was the breaking point for him where he wanted to reach out and find legal help. Interestingly enough, he and his wife reached out to all of the lawyers that they knew and it turned out that one of them was the law school roommate of one of our Securities Counsel, a guy named Jeremy Moorehouse in Washington DC. Jeremy sent an email to a list we maintain for civic engagement at WilmerHale, and I saw it and immediately thought this is exactly the kind of thing that we very much know how to do and how to help with, and so I reached out to Matt and we decided to take on this children’s book and then to, beyond that, expand the efforts to go after all the alt-right entities that were misusing his character.
Walsh: Wow that’s interesting and let’s hear for a moment, we have a clip of Matt Furie from the documentary describing what it was like to work with you all.
Matt Furie: You know I’m a compassionate guy and I’m a sensitive guy, but being able to work with a team of lawyers has given me strength to shut these assholes up.
Walsh: There we go. So one of the biggest moments in the story from a legal point of view, and also included in the documentary on Pepe the Frog, is when Matt Furie takes on Alex Jones and his show Infowars. Stephanie can you describe to us a little bit about Alex Jones, Infowars, and what they were doing with Pepe the Frog that caught Matt Furie’s attention and ultimately resulted in a lawsuit?
Lin: So Alex Jones runs a far-right radio and internet show called Infowars and he is pretty well known for being a conspiracy theorist, for promoting a lot of unverified, far-right claims. He promoted, for example, the idea that 9/11 was an inside job, that the Sandy Hook shooting was a hoax, and he frequently has controversial guests on his show including self-proclaimed white supremacist Richard Spencer. He has millions of followers and listeners. What his website does actually, unlike other shows, is rather than making money off of advertising, they sell products. Mostly he sells these supplements, but he also sells other kinds of swag and promotional materials on his website and we found out that he was selling a poster that had several far-right figures on it including an image of Pepe the Frog. So it has two images of Donald Trump on it, it has Roger Stone, who obviously since has become the criminal Roger Stone, and Kellyanne Conway, Ann Coulter, Milo Yiannopoulos who is also a famous provocateur, and then just sort of right in the middle is a smiling picture of Pepe the Frog.
Walsh: Wow, so in the course of the lawsuit, it ultimately had to take the testimony and deposition of Alex Jones. Louis, could you describe that? Where did that actually take place?
Tompros: Sure, so we actually ended up going to Infowars headquarters to take the Jones deposition and it is not easy to find, it is in a strip mall at a nondescript and well-guarded and well-secured location outside of Austin, Texas. So we had to go into the belly of the beast as it were to take this deposition. The deposition was important, because one of the things we needed to do was to deal with the claim that this was fair use and the intent that Jones had in putting this frog on the poster was an important part of the case, so we knew we needed to take the deposition. But the whole thing quite honestly was one of the more surreal experiences that I’ve had as a lawyer. When we started the deposition we were in this conference room right outside of the Infowars studio and Alex Jones walked in. He was a bit late and he immediately the first thing he said was, “How’s Hillary?,” because he was convinced that this lawsuit was part of a broader campaign by Hillary Clinton and John Podesta and others to get back at him. So the whole thing it started from that foot and only got stranger as the day went on. Looking back on it I wish that I had had some clever response when he asked me how Hillary Clinton was. In fact I think what I was thinking was actually just, boy if, man, if doing this kind of copyright work lets me get to meet Hillary Clinton that would be kind of cool. Put the whole deposition was really a surreal experience. We got what we needed for purposes of the case, but it was a strange and not yet repeated part of my litigation career for sure.
Walsh: So I can only imagine and Stephanie as a woman of color in this environment, knowing everything you did about Infowars and the issue related to Pepe the Frog, can you give us a sense of how that felt to you, being a part of this testimony in that location?
Lin: The entire experience was quite odd. They were located in this office park that’s kind of in the middle of nowhere, they changed the location of the deposition at the last minute and made it very difficult for us to find. His office itself has a very generic sort of American engineering sign on it. It definitely doesn’t say Infowars, and we had arrived the day before Louis did actually and there was a security guard there who actually chased us away and tried to keep us from coming in. All of those things combined made it very strange and then I think for me in particular it did feel a little bit like going to hostile territory. You know I’ve never had that much nervousness, I think, going into a small space with someone. Certainly no one we have ever deposed has been, has that sort of a reputation. I think, you know, I was feeling a lot of anxiety on the way down and it wasn’t until a friend of mine who is also a woman of color texted me the night before and asked the question, “Do you feel safe?,” that I was really able to pinpoint exactly what I was feeling and the answer to that was “No, not entirely.” You know and it was just interesting you know I think normally before a deposition one of my colleagues would say, “Do you feel ready?, Do you feel nervous?” The way that she asked the question so cleanly, just “do you feel safe?,” I think really got to the heart of what made this deposition different. I just did not know what to expect, I didn’t know how I was going to be treated and, you know, I didn’t know if I would even see any other women or other minorities in his office, which I don’t believe I did. And you just didn’t know what he was going to try and say. He is a person who likes to shock and I didn’t know just what was going to come out of his mouth or his lawyers for that matter. His lawyer had previously sent us some pretty provocative correspondence and so I was anticipating something confrontational and a little bit scary.
Walsh: So in the end did it turn into that kind of a confrontation verbally in the testimony or was it, Louis give us a sense of how the actual deposition went.
Tompros: As it turned out there were no unusual instances. Look, I am myself a pretty non-confrontational person for a litigator and I had exactly the same kind of concerns at a high level that Stephanie was having. That this was a potentially volatile situation, but the short answer to your question John is that no it didn’t turn confrontational, because what we ultimately did was ask questions related to the case, let Alex Jones go off on all of his various tangents and he fundamentally just made more and more problems for himself, the wackier and wackier the things that he said were, and we got exactly the things we needed, which was several key pieces of testimony that resulted in us winning a key motion at summary judgment before the court and that ultimately lead to a very favorable resolution of the case where after we prevailed on that summary judgment motion that Infowars gave up and gave us more than Mr. Furie was even asking for.
Walsh: So let’s turn to the legal issue in the case and ultimately what was decided there, if I understand it correctly, was this idea of memeification. In other words the argument that an artist loses control of a copyrighted artistic creation because it ends up becoming a meme that is so widely used and distributed that the artist can’t control it. In other words, that Matt Furie was out of luck in exerting any kind of control over his own character. Can you talk to us a little bit about that argument on the legal front and tell us what the court ultimately said?
Tompros: So there is and has long been the idea in intellectual property law of things becoming public domain. Creations that are either so old or so common really that anybody can use them. And in trademark law for example there is a whole idea of generic trademarks. Things that become so generic that they lose their protection. Like “dumpster” used to be a trademark term and now its generic and “trampoline” and “zipper” are those kinds of examples of things that used to have be protected and owned by a company, but are now just generic and anyone can use them. In copyright law there generally isn’t that kind of exception. If you have a copyright in a character or an image or a movie or a song, you have to affirmatively give that up. It doesn’t just become public domain because its popular. And there was a famous case from the 1990s that really set the bar for this and it was the case between the artist Jeff Koons and the publisher of the Garfield comic strip over the character Odie. Koons had used Odie in a sculpture and he argued that Odie was a popular character and therefore public domain and free to use. And the court in the 90s said “no, it doesn’t matter how popular a character becomes, the copyright owner is still allowed to guard against unauthorized commercial use of that character.” So when we fast forward to 2019 and the Pepe case, Infowars made a modern version of that same argument. It said with the internet and with memes, everything is changing so fast and you’ve got this character that has now been published thousands and thousands of times by third parties and it now has a life of its own. It has undergone memeification and is therefore public domain. And our response was that in copyright law there is no such thing as memeification. So a character doesn’t lose its copyright even if it’s popular on the internet, and the court agreed with us. The judge said that memeification does not destroy copyright protection and so just like Odie didn’t become public domain by being popular, Pepe didn’t become public domain just by being popular on the internet.
Walsh: Just a follow up on how that actually works in the real world. The thing that jumps out at me that song that we all sing, “Happy Birthday,” is actually copyrighted, right, but the song seems so common place and widely used that the person who wrote it and copyrighted it doesn’t really have control of it anymore. Is what happened in this case that the court found that’s not technically true, that the copyright could be enforced on something like a song.
Lin: Yeah, back in 2015 there actually was a case about the Happy Birthday song and I think what happened in our case is consistent with what happened there. That court did not decide that just because something was extremely popular and had been for a long time that copyrights were lost because of that. An interesting question that was raised in that case and was never resolved and also came up in our case is whether or not public statements by an artist suggesting that they have accepted the popularity of the character or accepted that they can no longer control it is enough to essentially abandon a copyright or provide some sort of implied license to the public for a copyright. In the Happy Birthday case that was never resolved because it was ultimately settled and the owners of the copyright, which was Warner Music, actually as part of the settlement decided to just give the rights to the public. So it is now in the public domain. In our case it was one of the issues that the judge thought was at least letting go to summary judgment regardless of whether or not he thought the actual argument would have merit. The bottom line is that effectively just because something is popular doesn’t mean that you have lost copyright on it. Even an abandonment or implied waver or some similar kind of argument would require a very very clear expression of intent. And it would be pretty unusual for someone to say out loud, I hereby give all rights to my copyright to the public and then go and try to enforce those copyrights I think that would be a pretty unique thought pattern.
Walsh: Wow, interesting. Obviously, the internet is not going away and memes are definitely not going away. Where is Pepe the Frog now? Are you hopeful for the future of the character?
Tompros: There has been, as a result of the work that we are doing, and as of the result of the work that our client Matt Furie has been doing, and as a result of the movie, in part, that you were just talking about and as a result of just broader changes, I think that there is real hope for Pepe going forward. When we got involved we were in a situation where Pepe was an identified hate symbol being used really for just one purpose and it was as kind of dog whistle to certain communities about racism and about hate. What we did was from a legal perspective played some defense and shut down that commercial use of the symbol for those purposes and then what our client has been trying to do and what the “Feels Good Man” documentary is in part about is to try an construct a broader and more positive narrative. I won’t spoil the end of the movie for you, but there are incredibly positive and hopeful and loving uses of Pepe now around the world and they are featured very much in the documentary. I do think that there is hope. A symbol at the end of the day is fundamentally not fixed ever and just as Pepe went to this kind of dark and horrible place, I think we are now seeing him come out and be something much much better and more positive.
Lin: So if I can just add to what Louis just said a little bit. You know I do think that once things are out on the internet, once they are on Twitter, they are never gone. You’ll never be able to erase completely Pepe’s association with some of those images, but I think what we have been able to do is take down some of the most notorious versions. You know Richard Spencer, The Daily Stormer, Alex Jones, and we’ve put the world on notice that Matt Furie is not going to stand for this, that he is going to enforce his copyright, that he doesn’t want to just let anyone do what they want with his character and that the resources of a big firm like WilmerHale is behind him.
Walsh: Well, thank you Stephanie and thank you Louis as well for sharing your time and your insights with us today. This brings us to the conclusion of our episode. It’s quite a story and one that seems so relevant in this unique year of 2020, but also going forward.
McGuire: And thanks of course to our listeners as well for joining us on this episode of “In the Public Interest.” We hope you will join us for your next episode as well and if you have a moment and want to learn more make sure to check out the documentary on Pepe the Frog and this whole legal fight, “Feels Good Man,” which is available on several streaming platforms and easy to find.