26/04/2023 Bored Ape NFT creators win case against copycat artist

People wait in line at the April 2022 grand opening of the Bored & Hungry pop-up burger restaurant in Long Beach, California, which used Bored Ape images.

Crypto company Yuga Labs has won its claims of trademark infringement against artist Ryder Ripps who copied their NFTs in what he called a protest of their racially offensive imagery.

Ripps and his legal team raised issues of celebrity endorsements, art, the First Amendment and what crypto really is as defenses in the copying of the Bored Ape Yacht Club collection that he then offered as RR/BAYC — defenses that were rejected. Damages are set to be decided at a trial scheduled for June. Ripps told CNN he would appeal.

In anopinion filed on Fridaygranting Yuga’s motion for summary judgment, Judge John F. Walter of the Central District of California ruled that Ripps and his co-defendant Jeremy Cahen “acted with a bad faith intent to profit.”

Their actions were “all commercial activities designed to sell infringing products, not expressive artistic speech protected by the First Amendment,” he wrote. The opinion says, “In particular, the RR/BAYC NFTs do not express an idea or point of view, but, instead, merely point to the same online digital images associated with the BAYC collection … As Yuga has pointed out, and the Court agrees, Defendants’ sale of RR/BAYC NFTs is no more artistic than the sale of a counterfeit handbag.”

A Yuga Labs spokesperson told CNN in a statement it was “a landmark legal victory … This isn’t just a win for us, it’s a win for the entire web3 industry to hold scammers and counterfeiters accountable.”

Ripps told CNN he believed Yuga was “spending millions and millions of dollars… and using trademark law to go after me for my speech.”

His lawyer Louis Tompros said: “We would expect to appeal both as to whether Yuga actually has any valid protectable trademarks in NFTs, which we think they very clearly do not, and on the First Amendment issues, which we think certainly should have gone to a jury.”

The Bored Apes were some of the most famous NFTs, and at their height in early 2022, occasionally sold for more than $1 million apiece. They are digital pictures of apes in a variety of outfits, such as sunglasses, a military helmet, “hip hop clothes,” and a “pimp coat.” Celebrities like Snoop Dogg and Paris Hilton said they got apes and appeared on national television promoting them.

But critics commented on social media that some of the Bored Apes contained what looked like references to posts on the website 4chan, which has become a hub of extremism, and pointed out that apes are an old trope in racist imagery. Ripps made a website detailing these claims, and then, in what he said was a protest of the alleged racism and as commentary on the idea that each NFT is digitally unique, copied the apes and sold them as RR/BAYC.

In a statement previously to CNN, Yuga said, “Our company and founders strongly condemn the spread of hate, in any form, against any group.”

Eric Goldman, a professor at Santa Clara University School of Law specializing in internet law and intellectual property, told CNN that the judge framed the case as one of straight competition — the originator of the NFTs versus an interloper offering a duplicate. “Once the court adopted the plaintiff’s framing of the case, it was clear what was going to happen: the plaintiff wins everything basically,” he said.

“There was an underlying really important point that the defendants are trying to make about the possibility that there was some kind of Nazi glorification in the overall collection NFT collection for the Bored Ape Yacht Club,” Goldman said. But the opinion didn’t address that. “Essentially, this court said, ‘You can’t do it that way. Find another way to make your point.’”