Feels Good Man! Pepe, copyright, and NFTs

In 2005 artist Matt Furie created four cartoon characters for a cartoon called Boy’s Club: Andy, Brett, Landwolf, and Pepe. You’d be forgiven if you were not familiar with the first three, but if you’ve spent any time online in the last decade you’ll almost certainly have come across the fourth, Pepe the Frog.

It’s difficult to know exactly how this cartoon character became so popular, but it’s easy to find where it happened, 4chan. Around 2008 Pepe started being used in 4chan, and the character started showing everywhere in the chaotic image board, and as it was the birthplace of practically every meme at the time, it spread to the rest of the Internet, particularly with the always online crowd. It was a memer’s meme. By 2014 it had achieved widespread mainstream recognition.

But then something interesting happened…  as the normie Internet started to percolate into 4chan due to the popularity of Pepe, 4chan responded by weaponising Pepe and turning it into an alt-right meme, and a religion, inextricably linked to Trump and the MAGA crowd. Pepe became the sign of every ugliness online, it allowed some people to claim playfulness, “look, we don’t mean all of this racism, we have a cartoon frog”. Pepe was listed as a hateful sign by the ADL.

But Matt Furie was sick of this, so he fought back, the story of the meme war is masterfully pictured in the documentary “Feels Good Man“. A campaign to clean Pepe started, re-claiming the character by depicting him in peaceful scenes, but that didn’t really work out. Furie even tried to kill Pepe off. The meme was too big, one researcher describes Pepe as “entry-point meme to radicalisation”. Millions and millions of memes online.

So Furie unleashed the big guns… Copyright Law to the rescue. It’s impossible to sue 4chan and the Internet, but it’s easy to sue individuals who were profiting and selling Pepe, such as Alex Jones, and the maker of a children’s book directed at conservatives using Pepe. Jones folded and settled out of court. Furie and his team of lawyers continued suing commercial-minded websites, which also settled and removed Pepe from other hateful sites.

Fast forward to 2021; Pepe has been dropped by a lot of the alt-right thanks to the copyright suits, but also after it was adopted by Hong Kong protesters as a symbol of freedom. Then Copium Pepe became a tool to attack many QAnon and Trump supporters, turning the meme on them.

And then NFT craze hits, and Pepe becomes a star in the non-fungible token markets. I’ve spent countless hours in NFT platforms in the last months, every time I open a new page, there’s usually an animated Pepe waiting for me. Many NFT artists are part of the meme generation that grew up on Pepe and other memes, so these tend to feature heavily on their output (probably only beaten by Doge). Instead of fighting the trend, Furie joined the NFT revolution, and started making lots of money off Pepe “originals”, and allowing most other NFTs of Pepes to continue. By the way, how on Earth is this collection of Pokémon Pepes allowed to sell? But I digress.

But now the honeymoon is over, and we could expect another round of Pepe-related copyright conflict. The most popular type of NFT right now are NFT avatar collectibles, these are artworks that tend to look the same, but each has a feature that makes it unique. So you have punks, kitties, apes, zombies, each recognisable as part of the collection, but each unique. A developer tried to release a generative collection called Sad Frogs District, which is mostly a bunch of Pepes with different features. This apparently was a step too far for Furie, who may very well be thinking of doing a collectible of his own, so he issued a DMCA complaint to the platform OpenSea, and the Sad Frog District was removed. The makers of the Sad Frog collectible are probably going to fight (they’ve issued a DMCA counter-notice).

Does Furie have a case? It’s difficult to say. On the one hand, it’s clear that he has copyright over Pepe, and he has been very successful in enforcing that copyright in the last couple of years. On the other hand, the Sad Frog District makers will likely argue that their work is transformative, and therefore would fall under Fair Use. Furie is based in the US, but it’s difficult to see where Sad Frog District team is located, so we will have to assume US law applies for now. While courts in the US appear to be willing to allow some transformative uses, the fact that Furie is engaged in the NFT market could play an important part in any court case, particularly if he argues that he wants to enter the profitable collectible avatar market.

It’s fascinating that this is now playing out in the DMCA arena. If OpenSea are not careful and reinstate the listing, and this makes it to court, Furie could very well sue OpenSea for secondary copyright infringement, and in that case they could end up losing millions. Edit: Annemarie Bridy has commented the following: “If OpenSea reinstates after the statutory period following a DMCA counternotice—and no proof of suit by Furie against the claimed infringers—then OpenSea has safe harbor from any secondary liability claims by Furie.”

My guess? If OpenSea are smart, they won’t re-list the collection, and the makers of the Sad Frog District could very well end up in court sued for copyright infringement. Personally, I don’t like their chances, but I’d love to hear from a US copyright scholar on this.

For now, feels good to be interested in NFTs, man.

Edit: There are lots of new details in this Vice article. Interestingly, the developers of the Sad Frog District have issued a counter-claim using Vladimir Putin’s name, and with no address. This pretty much guarantees that the counter-claim will fail, and OpenSea will probably have to uphold the de-listing.