Bored Ape NFT creators win case against copycat artist

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

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

In an opinion filed Friday granting 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 in bad faith with intent to make money.”

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

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

Ripps told CNN that he believed Yuga “spent millions and millions of dollars… and used trademark law to go after me for my speech.”

His attorney Louis Tompros said, “We expect to appeal both whether Yuga actually has any valid protective trademarks in NFTs, which we believe they clearly do not, and on the First Amendment issues, which we believe absolutely should have gone to a jury.”

The Bored Apes were some of the most famous NFTs, and at their peak in early 2022, they were sometimes selling for more than $1 million apiece. They are digital images of monkeys in a variety of outfits, such as sunglasses, a military helmet, “hip-hop clothes” and a “pimp cape”. Celebrities like Snoop Dogg and Paris Hilton said they got monkeys and appeared on national television to promote them.

But critics commented on social media that some of the Bored Apes contained what appeared to be references to posts on the website 4chan, which has become a hub for extremism, pointing out that monkeys are an old trope in racist images. Ripps created a website detailing these claims and then, in what he said was a protest against the alleged racism and in comment on the idea that each NFT is digitally unique, copied the monkeys and sold them as RR/BAYC.

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

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

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