New defence for Infowars in copyright case? “Pepe the Toad”

“So, it definitely did not inspire his creation of Pepe,’ Tompros wrote in an email Friday. (File Photo By Michael Zimmermann/Wikimedia commons, CC BY- SA 4.0)

The internet trolls who turned Pepe the Frog into a hate symbol may be disappointed to hear a new claim about the cartoon character’s origins, courtesy of conspiracy theorist Alex Jones’ Infowars website.

Infowars’ attorneys claim in a court filing Thursday that Pepe the Frog creator Matt Furie based his character on a “pre-existing, strikingly similar” Argentine cartoon character named “El Sapo Pepe,” or “Pepe the Toad.”

That’s a new defence for Infowars against a copyright infringement lawsuit that Furie filed in March over the site’s sales of a poster copying the character.

Infowars’ attorneys argue Furie could be precluded from asserting any copyright interest in his creation if Pepe the Frog is an “unauthorized derivative work” based on Pepe the Toad. Or it could “at least severely the scope of copyright protection in the character,” they wrote.

“You’ve got to ask yourself if Mr. Furie’s work is truly original,” Infowars attorney Marc Randazza said during a telephone interview Friday. “I think it’s at least worth taking a closer look.”

Louis Tompros, one of Furie’s attorneys, said the California-based cartoonist had never heard of “El Sapo Pepe” before receiving a letter from Infowars’s attorneys about it.

“So, it definitely did not inspire his creation of Pepe,’ Tompros wrote in an email Friday.

A federal judge set a July 2019 trial date for the lawsuit Furie filed against Infowars in Los Angeles.

It was the second such case that Furie has brought as part of a legal campaign to reclaim his creation.

Infowars’ website is the online platform for right-wing radio host Jones. Furie’s lawsuit says he didn’t authorize the site to sell a poster that depicts the anthropomorphic frog alongside images of Jones, President Donald Trump, far-right agitator Milo Yiannopoulos and other right-wing figures.

Jones has described the lawsuit as a “publicity stunt” and said he views it as an expression of political speech protected by the First Amendment.

“My listeners understand this is all frivolous,” Jones told The Associated Press in March.

Infowars was selling the Pepe-adorned “MAGA” poster for $29.95 and says it was created by “renowned artist and patriot” Jon Allen. Jones said Infowars has sold about 1,000 of the posters but added that it’s hardly one of the site’s most popular items.

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 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 Furie’s efforts to reclaim the character.

Twitter banned Jones and Infowars from the social media platform earlier this year for abusive behaviour. Jones has been sued by targets of his conspiracy theories, including parents of the Sandy Hook Elementary School massacre in Newtown, Connecticut, in 2012. Jones questioned whether the shooting rampage was a hoax.