Just weeks after popular Instagram meme account Fuck Jerry, its founder Elliot Tebele, and his media company Jerry Media were the subjects of widespread scorn for building a multi-million dollar business by stealing others’ memes, as well as for having a sizable hand in the marketing and promotion of the fraudulent Fyre Fest (and the subsequent Netflix documentary about the “luxury” music fest mess), FJerry LLC, Tebele, Jerry Media and Tebele’s tequila venture JAJA Spirits are being sued for … allegedly stealing a meme.
According to a new copyright and trademark infringement lawsuit filed in New York federal court, Olorunfemi Coker asserts that Tebele and co. stole a meme he created and posted it on the @fuckjerry Instagram account to promote Tebele’s tequila company, JAJA.
“In or about January 2019, Jerry Media posted [Coker’s meme] … under the @fuckjerry name via its @fuckjerry Instagram account,” the complaint asserts. The since-deleted post – which “advertised, referenced, and tagged JAJA,” Tebele’s tequila company – did not merely lack the legally-mandated disclosure to alert consumers as to Tebele’s ownership of the company (i.e., #ad), but it allegedly lacked authorization from Mr. Coker.
In fact, Coker – who describes himself as a “content creator” that “frequently posts original comedic content on social media networks” – claims that Tebele did not have authorization to post the image, and thus, the “identical duplicate” and “unlawful copy” posted to the @fuckjerry account runs afoul of copyright law.
More than that, though, Coker claims that his name was used in connection with the meme, thereby giving rise to a claim of trademark infringement. The use of his name by FJerry LLC was done with the intent of “causing confusion and mistake among customers and the public,” per Coker, and “to deceive the public into believing that [@fuckjerry’s] businesses, goods, or services are associated with, sponsored by, originate from, or are approved by Coker, when they are not.”
Mr. Coker asserts that while he “sent messages to Jerry Media advising of the violations of his rights and seeking redress from the above violations, [he] did not receive a response.”
With the foregoing in mind, Coker asserts claims of trademark infringement, false advertising, unfair competition, and false designation of origin, and copyright infringement (noting that the “content is a Berne Convention work” to get around the registration requirement as clarified by the recent Supreme Court decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com), among others.
In addition to a court order that Tebele immediately and permanently cease use of the allegedly infringing meme, Coker is seeking monetary damages in a sum to be determined at trial.
It will prove interesting to see how the court approaches the copyright protection at play for Croker’s meme, which consists of a screen shot of text message exchange created by Cooker, plus the addition of “I can’t read this convo alone” and three emojis. While copyright law in the U.S. protects an expanse of original works of authorship, including (but not limited to) original paintings, sculptures, photography, song lyrics, and jokes, and maintains a notoriously low bar for the level of “originality” required, relatively few courts have spoken directly to the protect ability and the complexity of memes.
Meanwhile, Jerry Media is already embroiled in a copyright infringement suit, for alleging stealing a video that Austin, Texas-based influencer Clarissa Cardenas took at the Fyre Fest and using in the documentary that the company produced with Netflix.
UPDATED (March 23, 2019): Within 48 hours of initiating a copyright infringement suit against FJerry LLC, Elliot Tebele, Jerry Media and Tebele’s tequila venture JAJA Spirits for allegedly stealing a meme and posting it on the popular @fuckjerry Instagram, legal counsel for “content creator” Olorunfemi Coker filed to voluntarily dismiss the case. While Coker’s motion to dismiss, which was filed with the U.S. District Court for the Southern District of New York on Thursday, does not specify why the case is being put to an abrupt end, counsel for Jerry Media says it was because the plaintiff was not the original creator of the meme either.
*The case is Olorunfemi Coker v. FJERRY, LLC d/b/a “@fuckjerry” and “Jerry Media;” Elliot Tebele, Jaja Spirits, et al., 1:19-cv-02456 (SDNY).