A federal judge in California on Thursday ruled that a copyright infringement lawsuit filed against InfoWars by the creator of the "Pepe the Frog" character will go to trial.
Matt Furie, the creator of the popular frog, which has largely been coopted online by conservatives, sued InfoWars for copyright infringement over a poster it sold depicting Pepe the Frog with right-wing figures including President Trump, activist Milo Yiannopoulos and conspiracy theorist and InfoWars founder Alex Jones.
District Judge Michael Fitzgerald, who is overseeing the case in federal court in California, ruled in favor of Furie on several counts. But he said the issue of comments made by Furie on his ownership of Pepe the Frog is disputed enough to advance it to trial.
InfoWars had alleged that Furie’s copyright of the character was invalid because it may have been based off another frog from an Argentinian cartoon called “El Sapo Pepe.” Furie said he had never heard of the Argentine cartoon before, and the judge ruled against InfoWars’ claim that Furie having access to the internet was enough to suggest that he could have seen the other character.
The site had also claimed that the image Furie submitted for copyright was copied from a meme posted on bodybuilding.com. But Furie showed that meme itself was likely copied from a black and white version of Pepe he had published years earlier, and Fitzgerald again sided with the cartoonist.
But Fitzgerald said he was unable to come to a full ruling on statements Furie had made about his ownership of the character.
InfoWars had pointed to public interviews given by Furie where he suggested he had given up control of his creation, as well as his “killing” of Pepe in their argument that the copyright didn’t stand.
The cartoonist argued that remarks he made about wanting people to profit off the frog were sarcastic and included media interviews where he said he would fight to maintain ownership of Pepe.
“It is evident that a genuine issue of material fact remains in dispute. Whether Plaintiff’s statements are 'sarcastic' is something for the jury to decide,” Fitzgerald, an Obama appointee, wrote in his ruling.
The judge said that whether Pepe is actually the frog portrayed in the poster, as claimed by InfoWars, should also be determined by a jury.
And Fitzgerald ruled in favor of InfoWars' request that he, and not a jury, should issue a summary judgment on Furie’s request for statutory damages and attorneys’ fees.
Furie filed the lawsuit against InfoWars last year. He has been successful in other legal fights over Pepe the Frog, which in recent years became associated with "alt-right" communities, particularly ahead of the 2016 election.
Pepe the Frog was also pulled from the neo-Nazi site The Daily Stormer last year after Furie's lawyers filed Digital Millennium Copyright Act requests.
Like the parents of Sandy Hook. Give them hell, Matt.