Infowars: Jury to decide whether Alex Jones’ conspiracy theory website can use Pepe the Frog meme for merchandise

Michael Kunzelman

A jury will decide whether conspiracy theorist Alex Jones' Infowars website has a legal right to sell a poster featuring the image of Pepe the Frog, a cartoon character that became hijacked by far-right extremists.

District Judge Michael Fitzgerald refused to throw out a copyright infringement lawsuit that Pepe's creator, California-based artist Matt Furie, filed against Infowars over its poster sales.

Lawyers for Mr Furie and Infowars both said they were pleased by the ruling, which clears a path for a jury trial to begin on 16 July in Los Angeles.

Louis Tompros, one of Mr Furie's lawyers, said his client looks forward to asking jurors to hold Infowars accountable for misappropriating Pepe, the anthropomorphic frog he created in the early 2000s.

"This is a case about making sure nobody (else) is making money off Pepe the Frog," Mr Tompros said.

Infowars' lawyer Marc Randazza said the decision preserves his client's key free speech defences against Mr Furie's claims and limits any possible award to a maximum of roughly $13,000 (£10,000).

"We are fighting this case because we think it's a free speech issue," Mr Randazza said. "(Jones) is doing it as an act in the public interest instead of his own interest."

Mr Jones uses his website to sell a diverse range of products.

Mr Furie's lawsuit says he did not authorise the site to sell a "MAGA" poster that depicts Pepe alongside images of Mr Jones, Donald Trump, far-right agitator Milo Yiannopoulos and other right-wing figures.

Infowars' lawyers argued the poster's depiction of Pepe is "fair use" with Judge Fitzgerald ruling the jury must decide that question.

Infowars was selling the Pepe-adorned poster for $29.95 (£24).

Gross revenues from sales of the poster totalled more than $31,000 (£24,500), the judge's ruling said.

Infowars' attorneys claimed Mr Furie based his character on a "pre-existing, strikingly similar" Argentine cartoon character named "El Sapo Pepe," or "Pepe the Toad".

They argued Mr Furie could be precluded from asserting any copyright interest in his creation if Pepe the Frog is an "unauthorised derivative work" based on Pepe the Toad.

However, Judge Fitzgerald said Infowars did not present any evidence to rebut Mr Furie's testimony that he was unaware of El Sapo Pepe before he sued.

Mr Furie's "chill frog-dude" debuted in a 2006 comic book called Boy's Club and became a popular canvas for benevolent internet memes.

But the user-generated mutations grew increasingly hateful and ubiquitous more than a year before the 2016 presidential election, when Mr Furie's creation become an online mascot for white nationalists, neo-Nazis and other right-wing extremists.

The Anti-Defamation League branded Pepe as a hate symbol in September 2016 and promoted Mr Furie's efforts to reclaim the character.

Associated Press