Are Nazi sympathizers laundering racist ideology with an army of digital apes and abusing the law to muffle criticism of their dastardly plot? That may sound freakishly preposterous, and yet it’s exactly the batshit situation described in court papers filed on Monday, in response to a recent lawsuit from Yuga Labs, the multi-billion dollar company behind the Bored Apes Yacht Club. The case, which pits a couple of NFT millionaires against a copycat conceptual artist, is already raising significant questions about art and commerce. It may even reshape our understanding of NFTs, themselves.
The Bored Apes, for anyone still unfamiliar with the project, are algorithmically-generated images of cartoon apes, immortalized on the Ethereum blockchain, that have become wildly popular with digital collectors and celebrities including Justin Bieber, Gwyneth Paltrow, Jimmy Fallon, Tom Brady and Mark Cuban. Even with the recent downswing in the crypto market, BAYC’s 10,000 digital apes are collectively valued at some $4 billion, making Yuga Lab’s founders, Greg Solano and Wylie Aronow, incredibly wealthy—at least on digital paper.
But all is not well on the planet of the bored apes. Ever since they were revealed by Buzzfeed as the founders—or as they claim, “doxxed”—Solano and Aronow have faced whispers that their BAYC project contains hidden racist symbols. Leading the online backlash is the conceptual artist Ryder Ripps, a creative director who has worked with the likes of Nike and Redbull but has more recently focused his efforts on taking down Yuga. According to Ripps, the Bored Apes are filled with Nazi dog whistles, including a logo that is reminiscent of the SS Totenkopf emblem. On a web page laying out his case, Ripps further alleges that Solano wrote his undergraduate thesis on Nazi fiction and that Aronow goes by an internet nickname that’s an anagram/4chan slang for “stupid negro.” And, of course, there’s the apes themselves, which Ripps sees as “simianization,” an alleged effort to dehumanize various ethnic groups.
In late June, the whispers had gotten loud enough that Aronow and his colleagues posted an essay on Medium, arguing that Yuga had become the target of a “crazy disinformation campaign” and laying out in detail how each of the “insanely far-fetched” inferences drawn by Ripps had entirely innocuous explanations. They wrote: “We liked the idea of creating a whole collection around apes who became so wealthy because of crypto’s rise, that they became extremely… bored.”
If a war of words was all that had happened, I’d shake my head slowly and chalk this up to the typical craziness of these modern times, but the same day the Medium essay went up, Yuga also filed a lawsuit in California federal court. Ripps, after all, isn’t just on a media crusade to expose BAYC’s allegedly racist origins. The artist also launched his own, copycat NFT collection, “RR/BAYC,” which pointed to the same digital images as the original Bored Apes but used unique entries on the blockchain. Later, he would describe his “appropriation” as a “satirical” commentary intended to highlight “Yuga’s use of unwitting celebrities and popular brands to disseminate offensive material” and to “create social pressure demanding that Yuga take responsibility for its actions.”
On first glance, Yuga’s lawsuit, lodged in California federal court on June 24, might come across as standard fare over a knockoff product. According to the complaint, Ripps’s collection attempts to “devalue the Bored Ape NFTs” and is “sowing confusion” with consumers about whether “RR/BAYC NFTs are in some way sponsored, affiliated, or connected to Yuga Labs’ official Bored Ape Yacht Club, in violation of the Lanham Act and related state law.”
Upon closer inspection, however, the lawsuit (read the full thing here) is a bit quirky. Usually, intellectual property usurpers are more interested in lifting themselves up than dragging a rival down. And where are the copyright claims? There are none. Just claims based on the Lanham Act, including trademarks, false advertising, and unfair competition. In other words, Yuga isn’t suing over the creation of not-so-original apes; instead, the company is fighting over something slightly different—specifically, consumer confusion.
The Free Speech Defense
I realize this is a nuanced point that takes some understanding about the difference between copyright and trademark. The former protects original authorship while the latter protects brands. Think about Yuga’s suit this way: It’s like if some movie producer made an unlicensed flick about a guy from a distant planet who wears a red cape and a big S on his chest, a hero who flies around with magnificent strength, and DC Comics wasn’t so much concerned with there being a copy of Superman in theaters, but rather how comic fans might get the wrong idea about who created this derivative character. Yuga is essentially in court to guard the value of its own name.
Since copyright seems the most logical cause of action, I began asking around about this curious omission, and the best theory I heard back—from multiple sources—was how Yuga might be forgoing copyright claims because this billion dollar cartoon chimp business can’t risk a court exploring exactly who owns what. (I reached out to Yuga’s attorney and didn’t hear back.) There is, after all, plenty of real confusion in the crypto world and in Hollywood about who controls the copyrights to NFTs after they are sold. I touched upon some of the legal issues a couple months back, in a story about actor Seth Green’s stolen ape. The BAYC terms and conditions are quite messy and don’t offer that much clarity (“When you purchase an NFT, you own the underlying Bored Ape, the Art, completely. Ownership of the NFT is mediated entirely by the Smart Contract and the Ethereum Network…”).
But by making its case against Ripps just about trademarks—actually, make that common law trademarks as Yuga has apparently been having some difficulty with the U.S. Trademark Office in registering its ape marks (a longer story for another day)—Yuga has opened the door to a particular defense. And this one includes talk about Nazis.
Ripps is represented by WilmerHale attorneys led by Louis Tompros, who a few years ago notably represented “Pepe the Frog” creator Matt Furie when the artist attempted via copyright claims to wrestle back his creation from alt-right meme-makers. (Furie’s case against InfoWars settled, although not before some funny business about how Pepe had supposedly derived from an Argentinian creature.) Now, Tompros is once again tackling the subject of alleged hate speech, although this time he’s doing so on the defendant side of an intellectual property dispute.
Tompros, in a just-filed motion to immediately dismiss the case, argues that Yuga’s suit against his client is “an attempt to silence an artist who used his craft to call out a multi-billion dollar company built on racist and neo-Nazi dog whistles.” Interestingly, Tompros invokes anti-SLAPP law, on the basis that Ripps’s apes are an expression of his free speech and that Yuga’s suit has no likelihood of succeeding. “Ryder Ripps used conceptual art to critique hateful imagery in the popular ‘Bored Ape Yacht Club’ project,” the motion continues. “When called out on their racism, Yuga sued Mr. Ripps not for defamation, but for trademark infringement. The First Amendment and the Rogers test preclude exactly this kind of abusive trademark infringement lawsuit.”
Could this wild gambit possibly work? And if so, what would that say about intellectual property on the blockchain?
Apes, Nazis… and Fellini
When it comes to trademark infringement and the First Amendment, one of the most important developments occurred more than a quarter century ago when the Second Circuit Court of Appeals developed the aforementioned “Rogers test.” At the time, actress Ginger Rogers was suing over Italian maestro Federico Fellini’s film, Ginger and Fred, a fictional story about two cabaret dancers who imitated Ginger Rogers and Fred Astaire. Rogers claimed the title misled consumers into believing she endorsed the movie. She lost the case. In response to her Lanham Act claim, the appellate court wrote that judges should look to see whether there’s artistic relevance in the title, and if so, to give it a pass unless there’s something that’s explicitly misleading about who sponsored or endorsed the underlying work.
Since the “Rogers test” came onto the scene, lots and lots of courts throughout the nation have used it, although there has been some stray criticism. For example, when the rap group Outkast came out with a song called “Rosa Parks” and the civil rights icon sued, the Sixth Circuit responded “the First Amendment cannot permit anyone who cries ‘artist’ to have carte blanche when it comes to naming and advertising his works.” (The rap group argued it was artistically relevant thanks to the line in the song about “Aha, hush that fuss / Everybody move to the back of the bus.” The case later settled with the parties including Sony BMG agreeing to collaborate on projects intended to educate the public about Parks’s role in making America a more racially inclusive place.)
More often than not, though, the “Rogers test” has been applied, and the artistic relevance doesn’t have to be high (“Above zero,” says the Ninth Circuit). So if Ripps, an artist, can show California federal judge John Walter that this lawsuit arises from his speech (no certainty) and how there’s something artistic about what he did, the case may come down to whether NFT buyers were explicitly misled.
On Twitter, Ripps once promoted his collection as a “fuck you” to Yuga, a message which he is now seizing upon as a point in his favor since, while not altogether kind, it’s pretty clearly a note of disassociation. His anti-SLAPP motion (read here) also notes that each purchaser of an RR/BAYC NFT was required to click an acknowledgement that the ape being bought was a “new mint of BAYC imagery, recontextualiz[ed]for educational purposes, as protest and satirical commentary.”
Yuga now gets to respond. If the company does manage to beat the anti-SLAPP motion and stave off dismissal, it’ll probably be buying a ticket to a long discovery process where some in the crypto community could be surveyed about their knowledge and expectations when buying funny-looking apes. I don’t think Yuga’s founders will have to prove they are not Nazis.
