Furie v. Infowars, LLC

• Decision Date: 16 May 2019
• Docket Number: Case No. CV 18-1830-MWF (JPRx)
• Citation: 401 F.Supp.3d 952
• Court: U.S. District Court — Central District of California
• Parties: Matt FURIE v. INFOWARS, LLC, et al.

401 F.Supp.3d 952

Matt FURIE

v.INFOWARS, LLC, et al.

Case No. CV 18-1830-MWF (JPRx)

United States District Court, C.D. California.

Filed May 16, 2019

Donald R. Steinberg, Pro Hac Vice, Louis W. Tompros, Pro Hac Vice, Stephanie Lin, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Nancy Lynn Schroeder, Rebecca A. Girolamo, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, CA, William C. Kinder, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Matt Furie.

Alex James Shepard, Marc J. Randazza, Randazza Legal Group PLLC, Las Vegas, NV, Robert E. Barnes, Barnes Law, Los Angeles, CA, for Infowars, LLC, et al.

Proceedings (In Chambers): ORDER RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [84]; DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [88]

The Honorable MICHAEL W. FITZGERALD, U.S. District Judge

Before the Court are two motions for summary judgment filed on April 8, 2019:

First, there is Plaintiff Matt Furie's Motion for Partial Summary Judgment (the "Furie Motion"). (Docket No. 84). Defendants Infowars, LLC ("Infowars") and Free Speech Systems, LLC ("FSS") filed an Opposition on April 15, 2019. (Docket No. 95). Plaintiff filed a Reply on April 22, 2019. (Docket No. 107).

Second, there is Defendants' Motion for Summary Judgment (the "Infowars Motion"). (Docket No. 88). Plaintiff filed his Opposition on April 15, 2019. (Docket No. 92). On April 22, 2019, Defendants filed their Reply. (Docket No. 102).

The Court read and considered the papers submitted on the two motions and held a hearing on May 6, 2019.

For the reasons discussed below, the motions are ruled upon as follows:

• The Furie Motion is GRANTED in part and DENIED in part . As to the affirmative defenses of abandonment and de minimis use, the parties have presented conflicting evidence and summary judgment is therefore inappropriate. As to the affirmative defenses of lack of copyright, invalid certificate of registration, and implied license, Defendants fail to rebut the undisputed evidence presented by Plaintiff.

• The Infowars Motion is GRANTED in part and DENIED in part . On summary judgment, Defendants fail to establish that no rational jury could conclude that Infowars was incorrectly named as a Defendant. And as in most cases, it is for the jury to determine whether Defendants have proven the defense of fair use. Defendants, however, have presented undisputed evidence to show that Plaintiff is not entitled to statutory damages and attorneys' fees.

I. BACKGROUND

On March 5, 2018, Plaintiff commenced this copyright infringement action. (See generally Complaint (Docket No. 1)).

The following facts are based on the evidence, as viewed in the light most favorable to the non-moving party, either Plaintiff or Defendants where appropriate. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor.").

A. The Origin of Pepe the Frog

On November 18, 2003, Plaintiff first published an online comic book called Play Time that features Pepe the Frog as one of several characters. (Plaintiff's Response to Defendants' Statement of Uncontroverted Facts ("DSUF") No. 1 (Docket No. 93); Defendants' Response to Plaintiff's Statement of Uncontroverted Facts ("PSUF") No. 1 (Docket No. 95-1)). Pepe the Frog is not drawn in color in any panel within the comic and is typically depicted with large bulging eyes and multiple white dots in his pupils. (DSUF No. 1; PSUF No. 2). On some of the front and back covers, Pepe the Frog is drawn in color and is presented as having green lips and puffy eyelids. (PSUF No. 3).

Beginning in 2006, Pepe the Frog appeared in a series of comic books called Boy's Club that was published online and in print. (Id. No. 4). Like Play Time , Boy's Club featured Pepe the Frog as one of several characters. (DSUF Nos. 2–6).

Between April and July 2007, Plaintiff published in print Boy's Club 1. (PSUF No. 5; DSUF No. 2). Only one drawing of Pepe the Frog is in color, which shows him with green lips. (DSUF No. 2). He is also shown as having one dot, two dots, or three dots in each eye in various panels throughout the comic. (Id. ). He appears in 21 of the comic's 44 pages. (Id. ).

On June 30, 2008, Plaintiff published in print Boy's Club 2. (PSUF No. 6; DSUF No. 3). Only two drawings of Pepe the Frog are in color, which shows him with green lips similar to how he was depicted in Boy's Club 1. (DSUF No. 3). He is shown as having one dot or three dots in each eye in various panels. (Id. ). He appears in 26 of the comic's 44 pages. (Id. ).

On August 30, 2009, Plaintiff published in print Boy's Club 3. (PSUF No. 7; DSUF No. 4). Pepe the Frog is not drawn in color in this comic and is depicted as having only one dot in each eye. (DSUF No. 4). He appears in 17 of the comic's 44 pages. (Id. ).

On September 30, 2010, Plaintiff published in print Boy's Club 4. (PSUF No. 8; DSUF No. 5). Only one drawing of Pepe the Frog is in color, which shows him with green lips similar to how he was depicted in Boy's Club 1 and Boy's Club 2. (DSUF No. 5). He is shown as having one dot in all but two panels, where he is shown with one half of a dot in each eye in one panel and multiple lines through each eye in another. (Id. ). He appears in 25 of the comic's 44 pages. (Id. ).

On June 30, 2016, Plaintiff published in print Boy's Club Collective Edition , a compilation of the prior volumes. (PSUF No. 9; DSUF No. 6). Only two drawings of Pepe the Frog are in color, which show him with green lips. (DSUF No. 6). He is sometimes shown as having one dot, two dots, three dots, or lines in each eye. (Id. ). He appears in 86 of the comic's 180 pages. (Id. ).

Below are some depictions of Pepe the Frog in Boy's Club :

(Furie Opp. at 4).

Plaintiff described the character as a "chill frog dude" who has a lackadaisical attitude and enjoys spending time with his animal roommates. (PSUF No. 10). Plaintiff stated, for example, that Pepe the Frog likes "pop," "pizza," and "talking on his cell," and his signature catch phrase is "feels good man." (Id. Nos. 12–13; DSUF No. 8). Plaintiff described the comics 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." (PSUF No. 11).

On September 1, 2017, Plaintiff obtained copyright registrations for the various Boy's Club comics. (Id. Nos. 25–31).

B. The Rise in Popularity of Pepe the Frog

By 2008, Pepe the Frog became a widespread internet meme, appearing throughout social media, online message boards, and other media sources. (Id. No. 14). He was commonly depicted with his "feels good man" catchphrase. (Id. No. 15). By 2010, the "meme phenomenon was kind of peaking for Pepe the Frog." (DSUF No. 9).

One such meme was created by an anonymous user on August 17, 2009, in an online forum:

(Plaintiff's Response to Defendants' Additional Statement of Uncontroverted Facts ("DSAUF") No. 3 (Docket No. 108)).

In an online interview in August 2010, Plaintiff was asked, "How about the people that actually crop out Pepe's face and use it, how do you feel about people remixing your work?" (DSUF No. 18). Plaintiff responded, "I don't really mind ... I was like it doesn't look the greatest but I don't care." (Id. ). And when asked if he considered himself to be a "meme creator," Plaintiff answered that he thought that Pepe the Frog "took a life of its own" and that "it's kind of an interesting phenomenon that out of anything else in the comic took off." (Id. ). Once Pepe the Frog became a meme, Plaintiff started to receive examples of works featuring the character, such as shirts, and did not "feel any particular happiness or unhappiness about it." (Id. No. 11). Rather, Plaintiff "was just kind of witnessing it as a phenomenon." (Id. ).

By 2014, famous celebrities such as Katy Perry and Nicki Minaj began publishing memes featuring Pepe the Frog and users of online message boards began posting thousands of works featuring Pepe the Frog and calling them "rare Pepes." (Id. No. 12). In 2015, he was the most reblogged meme on Tumblr. (PSUF No. 16).

Plaintiff stated that Pepe the Frog's popularity as an internet meme eventually turned into a financial windfall for him. (DSUF No. 24).

The parties dispute the meaning of Plaintiff's statements related to Pepe the Frog that were made in various interviews between April 2015 and September 2016. (Id. Nos. 19–23; PSUF No. 37–40). Plaintiff believes that his statements made in interviews were sarcastic and a joke or displayed pride for Pepe the Frog, while Defendants believe these public statements showed abandonment of Plaintiff's copyrights.

On December 20, 2016, Plaintiff created his own visual work called "Pepe in Blue Shirt," for which he obtained a copyright registration on September 1, 2017. (See PSUF No. 32; DSUF No. 7). The image is reproduced further below.

C. The Alleged Misappropriation of Pepe the Frog

Plaintiff asserts that, beginning in 2015, white nationalists and members of the "alt-right" began associating images of Pepe the Frog with white supremacist language and symbols, Nazi symbols, and other offensive imagery. (PSUF No. 21; see DSUF No. 14). Throughout 2015 and 2016, other third parties continued to use Pepe the Frog in images depicting the character as or with then-Presidential candidate Donald J. Trump alongside other conservative political figures. (Id. No. 15; see PSUF No. 22). Around September 2016, news media began referring to Pepe the Frog as a "white nationalist symbol." (DSUF No. 15).

In January 2017, non-party Jon Allen created the first Make America Great Again ("MAGA") poster. (Id. No. 42; PSUF No. 43). The MAGA poster is a collage of several politically significant figures during the 2016 presidential election season. (DSUF No. 43). Pepe the Frog is featured in upper left...