Bored Ape NFT Critics Face Skeptical Panel in Free Speech Appeal

Attorneys for artists Ryder Ripps and Jeremy Cahen told a seemingly skeptical panel of judges Monday that they should be allowed to dodge a lawsuit accusing them of violating trademark law by selling counterfeit Bored Ape Yacht Club nonfungible tokens.

The controversial conceptual artists are appealing a lower-court ruling denying their Anti-Strategic Lawsuit Against Public Participation motion against Bored Ape maker Yuga Labs Inc. The anti-SLAPP motion argued that Yuga Labs, upset with Ripps’ criticism of the Bored Apes on social media, initiated the lawsuit to silence him and bury him in legal fees.

Ripps and Cahen have argued that the Bored Ape NFTs—digital images of monkeys traded on the blockchain—feature neo-Nazi and alt-right imagery. They sold identical looking NFTs called RR/BAYC that they argued encapsulated their criticism of Yuga Labs.

The duo were already found liable for violating federal trademark law earlier this year by Judge John Walter in the US District Court for the Central District of California. He held a bench trial this summer on the scope of damages; the judge hasn’t yet announced his conclusion.

Ripps and Cahen’s attorney, Thomas Sprankling of WilmerHale, told the three-judge panel for the US Court of Appeals for the Ninth Circuit that California’s anti-SLAPP statute is “supposed to be a prophylactic” that “goes a little beyond the bounds of the First Amendment to make sure you’re not threatening people and chilling speech.”

“I’m still not seeing it,” said Circuit Judge Morgan Christen. “We’re looking for a limiting principle if this is permissible.”

The judges appeared to focus their analysis only on the sale of the copycat NFTs, not the additional criticisms from Ripps and Cahen.

“It strikes me that there is no act of protest when you isolate just those pieces,” said Circuit Judge Anthony Johnstone.

The Bored Ape Yacht Club NFT collection exploded in popularity in 2021 but have cratered in value since.

Circuit Judge Carlos Bea also served on the panel.

Fenwick & West LLP represents Yuga Labs. Wilmer Cutler Pickering Hale & Dorr LLP represents Ripps and Cahen.

The case is Yuga Labs Inc. v. Ripps, 9th Cir., No. 22-56199, oral argument held 10/16/23.