Art Law

• Publication year: 2019
• Author: By Simon J. Frankel & Sean Howell

Art Law

By Simon J. Frankel & Sean Howell

There were several cases concerning art law in 2019 of interest to California litigators. A copyright dispute over a cartoon frog that has come to be associated with white supremacists raised questions about artists' control over their work in an era of remixing and "meme-ification." A decision concerning reproductions of Picasso's work in which a California federal court declined to recognize a French judgment for copyright infringement brought to the surface tensions between American and French copyright law. A class-action lawsuit against Chinese e-commerce giant Alibaba survived a motion to dismiss in a decision that clarified the standard for vicarious copyright liability as applied to large internet platforms. And the California Court of Appeal re-affirmed the state's protection of petitioning activity in a malicious prosecution action arising out of a suit over referral fees for work sold in an art gallery.

Dispute over Rights in Frog Cartoon Associated with White Supremacists Ends with Settlement after Split Ruling on Summary Judgment in Furie v. Infowars

A copyright infringement suit over rights in the character Pepe the Frog, a comic book character that has become associated with white supremacists and the "alt-right" movement, settled after a federal court in the Central District of California granted in part and denied in part cross-motions for summary judgment.¹ The case raised interesting issues concerning artists' ability to control their work after it goes viral and is re-mixed into new forms on the internet.

The plaintiff in the case, Matt Furie, first featured the Pepe the Frog character in an online comic book in the early 2000s. Furie described Pepe as a "chill frog dude" with a lackadaisical attitude, and characterized his comic books as "celebrat[ing] the lifestyle of 20-something bros, capturing their lives full of junk food, catchphrases, and bodily fluids with horrifying and hilarious accuracy."² Pepe had become a popular internet meme by 2008, and was often depicted with his catchphrase, "feels good man."³ Pepe's popularity as an internet meme produced a financial windfall for Furie, and Furie was quoted in articles saying that he did not mind people remixing his work.⁴

Furie asserted that the values with which his cartoon frog were associated began to change when members of the "alt-right" started to link images of Pepe with white supremacist and Nazi symbols in 2015. He brought a number of cases to halt the cartoon's appropriation by the far right, including a case against radio host and media publisher Alex Jones and his company, Infowars, in the Central District of California.⁵ The suit against Jones and Infowars centered on Infowars' publication of a "Make America Great Again" poster that depicted a frog cartoon which Furie claimed was copied from his Pepe cartoon, alongside various conservative political figures, such as Donald Trump, Kellyanne Conway, and Roger Stone.⁶

The parties brought cross-motions for summary judgment and received a mixed ruling from the court that explored the application of copyright doctrine to art that has gone viral on the internet.

First, the court rejected Infowars' argument that Furie's cartoon was derived from an Argentinian cartoon frog named El Sapo Pepe, and that Furie therefore lacked a valid copyright. The court held that Infowars had put forth no evidence that Furie had access to El Sapo Pepe: it had not sufficiently supported its arguments that Furie had encountered the Argentinian cartoon while on a trip to Mexico, or that Furie had discovered the cartoon on the internet before creating Pepe the Frog.⁷

The court also rejected Infowars' argument that Furie had granted Infowars an implied license to use Pepe's image through public statements to the effect that he did not care if others used Pepe's image, and that such use was out of his control. The court found that there had been no communication between the parties, and therefore no evidence of an offer or acceptance that could give rise to an implied license.⁸ However, the court also held that Furie's public statements created a factual issue as to whether he intended to abandon the copyright.⁹

Meanwhile, the court denied Infowars' motion for summary judgment on a fair-use defense, holding that numerous factual disputes precluded summary judgment. Of note, the court ruled that the "meme-ification" of the Pepe character did not necessarily weigh in favor of a finding of fair use, noting that the creator of a character is entitled to guard against unauthorized commercialization no matter how popular the character has become.¹⁰

[Page 19]

The court also held that a genuine issue of material fact remained as to whether Infowars' use of the cartoon image was de minmis, and rejected Furie's motion for summary judgment on this point.¹¹ And it granted Infowars' motion for summary judgment on Furie's claims for statutory damages and attorneys' fees, given that Furie had not sought to register his copyright until after the alleged infringement had commenced.¹²

Shortly after the court's ruling, the parties settled for $15,000, representing the approximate amount of profits Infowars had made on the poster.¹³ Furie's attorney portrayed the settlement as a victory for his client, saying that the lawsuit "was not really about making money and certainly not going after Alex Jones," but instead about "mak[ing] sure the use of Pepe in association with hateful images and ideas stops."¹⁴ Infowars similarly claimed victory, calling the sum a "tiny settlement."¹⁵

Northern District Declines to Recognize French Judgment over Picasso Reproductions in de Fontbrune v. Wofsy

In the latest milestone in a long-running dispute between two publishers of books that reproduce the...