“Don’t do this to my creation!” — Pepe the Frog and Author’s Rights

As crazy as this election season has been, one of its weirder chain of events has been the sudden mainstream fame of Pepe the Frog. Depending on who you ask, he is either just a chilled-out comic book character, a meme that is already kind of over, or a hate-speech seeped symbol. All of these are true, thanks to his countless variations, the hate-dynamics of the Internet, and the malleability of cartoon characters. If you need a recap, Reply All devoted an episode to “The Grand Tapestry of Pepe,” and there are probably dozens of articles on Pepe’s origin, his “true meaning,” and his role as a symbol of right wing extremism. Even the Clinton campaign chimed in, trying to explain the phenomenon (though without sufficiently discussing the complex nature of these Internet fads).

An image promoting Donald Trump’s presidential campaign using Pepe the Frog.

All of this culminated in the Anti-Defamation League adding Pepe to its list of hate symbols, which understandably dismayed his creator Matt Furie, who said in an interview with the CBC: “my name is up there on the database, which […] makes me pretty uncomfortable.” While the ADL appears to have changed the entry for Pepe the Frog since then and removed Furie’s name (making it one of the more nuanced explanations of Pepe, now), it is easy to understand the creator’s uneasiness. Together with the publisher of the collection of his comics, Fantagraphics, Furie just days ago published a brief statement on “The Truth About Pepe the Frog,” which discusses the “significant emotional and financial harm for the creator” that resulted from the widespread (mis)use of his character. Furie has not always been this clearly opposed to “the myriad copyright violations of recent weeks,” however. In fact, in a September 13 interview with The Atlantic’s Adam Serwer, Furie stated that he was fine with the ubiquity of Pepe:

“It’s never bothered me, in fact it’s been kind of inspiring to me, just seeing how mostly kids and teenagers, and kind of the youthfulness of Pepe, is what I’m attracted to, and it’s been an inspiration and something that I’m proud of.”
The cover of the Fantagraphics collection of Matt Furie’s comics.

A venerable mountain of op-eds, explainers, and tweets later, Furie seems to have been forced to change his position. In their short press release, Furie and Fantagraphics emphasize that Pepe was not created as a racist symbol, and that any copying, distribution or modification of images of Pepe without permission are copyright infringement. All of this seems pretty obvious, even though the legal situation (in the US) is not as clear as they imply (any specific instance of the Pepe meme may be fair use or Pepe may not be delineated clearly enough to enjoy copyright protection as a character). More interestingly, Furie also stresses the emotional toll this affair has taken on him and this is an issue that is not talked about in an American context as often.

“[S]ignificant emotional and financial harm for the creator.”

While it is usually argued that American copyright law is founded on the principle that it ensures creators have a (financial) incentive to create and distribute their works, European laws often put the creator and their work at the center instead. The basic justification of copyright protection (which is, simply put, a limited monopoly) is different: the work is an expression of the personality of its creator and, thus, needs to be understood as a manifestation, or even a part, of that personality. In a sense, the work stands for the creator, representing them to the public and warranting protection because of that, not in order to allow the creator to reap profit.

Following this understanding of the relationship between work and author in mind, it is easy to argue for extensive author’s rights. They may range from a right to attribution (to be mentioned as the author), or a right to have the integrity of the work to be kept intact (no modifications without the author’s consent), to a right to be protected from excessive criticism (as insulting the work is also insulting its creator), or the right to withdraw a work (for example to have a painting destroyed, even if someone else bought it). Few countries have laws on the books that strictly enforce these kinds of rights, but the concrete legality is not the point here. Having to helplessly watch as your creation is turned into a hate symbol by shitposting racists on Twitter would be distressing for anyone. Doubly so, because many creators do, in fact, not create because of financial incentives, but out of a passion for their art, a need to create, to pour their heart out and show it to the world.

This is the kind of authorship that lies at the heart of the ideas behind author’s rights. An author is not vulnerable because their work is so easily copied, removing their financial incentives, but because their work necessitates that they lay a part of their soul bare and release it into the world. Once they have let go, without author’s rights, their work is unprotected from insult and injury. For others to take and warp it, as the press release explains, “[…] in the service of such repellent hatred — and thereby dragging your name into the conversation, as well — makes it considerably more troubling,” it even reflects back onto the creator themselves.

The argument against strong author’s rights is just as clear, however. First, there are obvious issues of free speech, but copyright is always also a limitation of speech. More importantly, without imitation, copying, and modification, there would be hardly any works to protect to begin with. Art, even culture generally, is based on inspiration from all kinds of sources. This is what Furie meant in his earlier interview in September. Pepe himself could only be co-opted by racists, because he is a strong enough thread in the vibrant, powerful, and living fabric of digital culture. This culture needs protection (something that US copyright law purportedly aims at), as the culture industries’ many attempts to control and steer it (through DRM and restrictive Terms of Use, or ContentID and abusive DMCA claims) so clearly show. There are many great initiatives that attempt to create frameworks in which digital culture can thrive (from Creative Commons and Open Source projects, to copyleft activism or fair use education), while giving the creators the possibility to retain some control through author’s rights (for example Creative Commons “by” licenses) and they have been tremendously successful in many regards. Still, the fundamental legal protections of creators are a question of law and what these laws ought to look like will likely remain in dispute for years to come.

Pepe the Frog by Matt Furie

As with any legal question, we, as a society, are asked to find a balance. Here, a balance that protects creators like Furie, but also protects the vibrancy of our culture. This case shows why these issues are not simply a question of law and politics. Pepe the Frog is the perfect illustration of a difficult ethical question that is fundamental to copyright. As we move forward, reexamining our laws and our values, we should not just think about revenue streams and remuneration. We should also remember Pepe, his creator and how we can protect them from the harm of widespread distortion of a fun-loving frog by an army of angry racists.