Chaos on the Planet of the Bored Apes

Are Nazi sympathizers whitewashing racist ideology with an army of digital apes and abusing the law to stifle criticism of their dastardly plot? That might sound bizarrely absurd, and yet it’s exactly the shitty situation described in court documents filed Monday, in response to a recent lawsuit from Yuga Labs, the multibillion-dollar company behind the Bored Apes Yacht Club. The case, which pits a couple of NFT millionaires against a copycat concept artist, already raises important questions about art and commerce. It might even reshape our understanding of NFTs themselves.

The Bored Apes, for those unfamiliar with the project, are algorithmically generated images of cartoon apes, immortalized on the Ethereum blockchain, which have become hugely popular with digital collectors and celebrities including justin bieber, Gwyneth Paltrow, Jimmy Fallon, Tom Brady and Marc Cuban. Even with the recent decline in the crypto market, BAYC’s 10,000 digital monkeys are collectively valued at around $4 billion, making Yuga Lab founders, Greg Solano and Wylie Aronowincredibly rich, at least on digital paper.

But all is not well on the Planet of the Bored Apes. Since they were revealed by Buzzfeed as the founders – or as they claim, “doxxed-Solano and Aronow have faced rumors that their BAYC project contains hidden racist symbols. The concept artist is leading the online backlash Ryder Rips, a creative director who has worked with Nike and Redbull, but has more recently focused his efforts on scrapping Yuga. According to Ripps, the Bored Apes are filled with Nazi dog whistles, including a logo reminiscent of the SS Totenkopf emblem. On a webpage laying out his case, Ripps further alleges that Solano wrote his undergraduate thesis on Nazi fiction and that Aronow uses an Internet nickname which is anagram /4chan slang for “dumb nigger”. And, of course, there are the apes themselves, which Ripps sees as “simianization,” an alleged effort to dehumanize various ethnic groups.

By the end of June, the whispers had grown loud enough that Aronow and his colleagues published an essay on Medium, claiming that Yuga had become the target of a “crazy misinformation campaign” and detailing how each of the “incredibly wacky” inferences drawn by Ripps had entirely innocuous explanations. They wrote, “We liked the idea of ​​creating a whole collection around monkeys who got so rich from the rise of crypto, that they got extremely… bored.”

If a war of words was all that happened, I’d slowly shake my head and chalk it up to typical modern-day craziness, but on the same day the average essay was posted, Yuga also filed a lawsuit in federal court in California. . Ripps, after all, isn’t just on a media crusade to expose BAYC’s allegedly racist origins. The artist also launched his own NFT collection, “RR/BAYC”, which pointed to the same digital images as the original Bored Apes, but used unique entries on the blockchain. He would later describe his “appropriation” as a “satirical” comment meant to highlight “Yuga’s use of unwitting celebrities and popular brands to spread offensive material” and to “create social pressure demanding that Yuga assume responsibility for his actions.

At first glance, Yuga’s lawsuit, filed in California federal court on June 24, might appear to be standard fare over a counterfeit product. According to the complaint, Ripps’ collection attempts to “devalue Bored Ape NFTs” and “confuse” consumers as to whether “RR/BAYC NFTs are somehow sponsored, affiliated or connected to the Official Bored Ape Yacht Club of Yuga Labs., in violation of Lanham Law and related state law.”

On closer inspection, however, the lawsuit (read the full story here) is a bit bizarre. Usually, intellectual property usurpers are more interested in uplift than in dragging a rival down. And where are the copyrights? There are not any. Only claims based on Lanham law, including trademarks, false advertising and unfair competition. In other words, Yuga doesn’t pursue creating not-so-original monkeys; instead, the company is fighting for something slightly different, especially consumer confusion.

The defense of freedom of expression

I realize this is a nuanced point that requires some understanding of the difference between copyright and trademark. The former protects original authorship while the latter protects trademarks. Think of Yuga’s costume this way: it’s like a movie producer making an unlicensed movie about a guy from a distant planet who wears a red cape and a big S on his chest, a hero who flies with a magnificent force, and DC Comics was I’m not so much concerned about there being a copy of Superman in theaters, but more about how comic book fans might get the wrong idea of who created this derived character. Yuga is basically in court to keep the value of his own name.

Since copyright seems the most logical cause of action, I started asking about this curious omission, and the best theory I heard – from multiple sources – was how Yuga might waive copyrights because this billion-dollar cartoon chimp company can’t risk a court exploring exactly who owns what. (I contacted Yuga’s attorney and got no response.) After all, there’s a lot of confusion in the crypto world and in Hollywood about who controls the copyrights on NFTs after they are sold. I touched on some of the legal issues a few months ago, in a story about the actor seth greenis the stolen monkey. BAYC’s terms and conditions are pretty messy and don’t offer much clarity (“When you buy an NFT, you completely own the underlying Bored Ape, the Art, completely. Ownership of the NFT is completely mediated by the smart contract and the Ethereum Network…”).

But making his case against Ripps solely on trademarks – in fact, make that common law as Yuga apparently had difficulty with the United States Trademark Office to register his monkey marks (a longer story for another day) – Yuga opened the door to a particular defense. And this one includes discussions of the Nazis.

Ripps is represented by WilmerHale attorneys led by Louis Tomproswho a few years ago notably represented the creator of “Pepe the Frog” Matt’s Fury when the artist attempted, via copyright, to reclaim his creation from alt-right mememakers. (Furie’s case against InfoWars settled, but not before a funny case about how Pepe was supposedly derived from an Argentinian creature.) Now Tompros brings up the topic of alleged hate speech again , although this time he is doing it on the defendant side of an intellectual property dispute.

Tompros, in a just-filed motion to immediately dismiss the case, argues that Yuga’s lawsuit against his client is “an attempt to silence an artist who used his art to call a multi-billion dollar company dollars built on racist and neo-Nazi dogs”. whistles. Interestingly, Tompros invokes the anti-SLAPP law, on the grounds that Ripps’ monkeys are an expression of his free speech and that Yuga’s prosecution has no chance of succeeding. “Ryder Ripps used concept art to critique hateful imagery in the popular ‘Bored Ape Yacht Club’ project,” the motion continues. “When exposed for his racism, Yuga sued Mr. Ripps not for defamation, but for trademark offense. The First Amendment and the Rogers test rules out exactly this kind of malicious trademark infringement lawsuit.

Could this wild bet work? And if so, what this say about intellectual property on the blockchain?

Monkeys, Nazis… and Fellini

With respect to trademark infringement and the First Amendment, one of the most significant developments occurred more than a quarter century ago when the Court of Appeals for the Second Circuit developed the “test of Rogers” above. At the time, the actress Ginger Rogers continued the Italian maestro Federico Fellinithe film, Ginger and Freda fictional story about two cabaret dancers who impersonated Ginger Rogers and Fred Astaire. Rogers claimed the headline misled consumers into thinking she endorsed the film. She lost the case. In response to its request under the Lanham Act, the appeals court wrote that judges should consider whether there is artistic relevance in the title, and if so, to give it a pass unless there’s something that’s explicit misleading about who sponsored or endorsed the underlying work.

Since the “Rogers test” came onto the scene, scores of courts across the country have used it, although there have been some spurious criticisms. For example, when rap group Outkast released a song called “Rosa Parks” and the civil rights icon was sued, the Sixth Circuit responded that “the First Amendment can’t allow anyone who shouts ‘artist.’ having carte blanche when it comes to naming and making known his works. (The rap group argued that it was artistically relevant thanks to the song’s line to “Aha, shhh that hustle / Everybody movin’ in the back of the bus.” The matter later settled with parties, including Sony BMG agreeing to collaborate on projects intended to educate the public about Parks’ role in making America a more racially inclusive place.)

More often than not, however, the “Rogers test” has been applied, and artistic relevance need not be high (“Above zero,” says the Ninth Circuit). So if Ripps, an artist, can show the California federal judge John Walter that this trial stems from his speech (not certain) and how there is Something artistic about what he did, the case can be boiled down to whether NFT buyers were explicitly misled.

On Twitter, Ripps once promoted his collection as a “fuck you” to Yuga, a message he now takes as a point in his favor because, while not entirely nice, it is quite clearly a note of dissociation. His anti-SLAPP motion (read here) also notes that every purchaser of an RR/BAYC NFT had to click on an acknowledgment that the purchased monkey was a “new mint of BAYC imagery, recontextualiz[ed]for educational purposes, as protest and satirical commentary.

Yuga can now respond. If the company manages to beat the anti-SLAPP movement and avoid dismissal, it will likely buy a ticket to a lengthy discovery process where some members of the crypto community might be asked about their knowledge and expectations when buying. funny monkeys. . I don’t think the founders of Yuga will have to prove they’re not Nazis.

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