Artist Ryder Ripps Is Hit With $1.6 Million in Damages for Selling Replicas of Bored Ape Yacht Club NFTs
The judge did not buy the argument that the series was created as a parody or sarcastic joke.
A California judge hit controversial artist Ryder Ripps with more than $1.5 million in damages in a closely watched lawsuit over the NFT series known as Bored Ape Yacht Club (BAYC).
U.S. District Judge John F. Walter, for the Central District of California, did not buy Ripps’s and his co-creator Jeremy Cahen’s argument that they had created their own line of Bored Apes, under the label RR/BAYC for “Ryder Ripps Bored Ape Yacht Club,” as a parody or joke inspired by “sarcasm.”
Before creating his own series, Ripps had openly criticized the collection, which was created by Miami-based Yuga Labs, which the artist said had “deliberately embedded racist, neo-Nazi, and alt-right dog whistles” in the various ape characters.
Though the case, which hinged on issues of fair use and cybersquatting, was decided back in April, a court trial was held on July 31 to determine the “equitable remedies to be awarded to plaintiff Yuga Labs,” according to the court papers.
Judge Walter slapped Ripps and Cahen with damages of $1,375,362.92, which is the amount of profit that they purportedly made on the sale of RR/BAYC tokens, plus an additional $200,000 in statutory damages, a permanent injunction, as well as Yuga’s attorneys’ fees and costs. Judge Walter wrote that the decision on the sum was reached after “carefully considering all of the evidence, the credibility of the witnesses, and the parties’ pretrial and post-trial filings.”
The 28-page ruling, which was issued in a narrative form to more fully explain the reasons for the decision, often contained pointed rebukes of Ripps’s and Cahen’s actions, even as it threw out some of the charges initially brought by Yuga when it first sued in July 2022. Yuga Labs was founded in 2021 by Wylie Aronow and Greg Solano.
Asked for comment, Louis W. Tompros of Wilmer Hale told Artnet News via email: “Mr. Ripps and Mr. Cahen disagree with many aspects of the court’s decision and expect to appeal.”
Meanwhile, a spokesperson for Yuga Labs shared a statement: “After the court ruling against Ryder Ripps and Jeremy Cahen for infringing Yuga Lab’s intellectual property, they’ve been ordered to cease all sales and marketing of their counterfeit NFTs. They must pay $1.575 million in damages, Yuga’s attorneys’ fees, transfer their fake Apes’ smart contract, and relinquish related online assets. This victory not only defeats scammers but supports creators advancing Web3 experiences worldwide.”
Other noteworthy aspects of the ruling included emphasis that the court’s April ruling found that Ripps and Cahen “intentionally infringed Yuga’s BAYC Marks with a bad faith intent to profit from their use of those marks. Indeed, even after Yuga filed this action and after the court issued its April 21, 2023 order, defendants continued to market and promote their infringing RR/BAYC NFT collection and their Ape Market [platform].”
The court found that the added design elements to Ripps’s NFTs “do not change the fact that defendants’ domain names [rrbayc.com and apemarket.com] are confusingly similar to Yuga’s trademarks. An Internet user who encountered the website RRBAYC would undoubtedly be confused about its affiliation.” Further, the “competing product looked “identical” to Yuga’s product.
In a footnote on the decision, Judge Walter wrote that he did not find testimony on behalf of the defendants credible when they said the Ripps Ape NFTs were created “as a protest against Yuga and not as a means of profiting from” consumer confusion.
According to the decision, that testimony was contradicted by either contemporaneously created documentary evidence or their own deposition testimony. “For example, in a text conversation between Cahen and Ripps about the RR/BAYC NFT collection, Cahen told Ripps ‘Ur gonna make so much on this shit LMFAO’ and ‘You’ll make like a million dollars’.”
In addition, the judge wrote that Ripps and Cahen “both conveniently testified and attempted to explain away any documentary evidence that contradicted their position by stating that such evidence was simply ‘sarcasm’ or a ‘joke’.”
The July 31 trial also at times touched in a near-surreal way about the limits of parody. In cross-examination, Yuga co-founder Solano touched on issues from Saturday Night Live skits to Andy Warhol’s riff on Campbells Soup Cans.
Asked by his attorney: “Without the underlying brand, a parody cannot sell, right?” Solano responded: “A thing cannot be a parody of itself.”
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