The latest attempt by non-fungible token (NFT) artist Ryder Ripps to dismiss the lawsuit related to the BAYC has faced skepticism from a panel of judges at the United States Court of Appeals for the Ninth District. In an October 17 hearing, the judges appeared unconvinced by the arguments presented by Ryder Ripps and Jeremy Cahen’s lawyer, Thomas Sprankling, who contended that the case should be dismissed based on grounds of free speech.
Ryder Ripps and Jeremy Cahen were represented by WilmerHale partner Thomas Sprankling, who argued that the imitation Bored Ape NFTs were distributed in a manner meant to protest what they saw as anti-Semitic imagery concealed within the Yuga Labs-created collection. He consistently framed the sale of these NFTs as an avant-garde form of artistic expression that pushes the boundaries of free speech. Sprankling maintained that Yuga’s lawsuit should be dismissed under California’s anti-SLAPP statute, designed as a proactive measure to prevent intimidating lawsuits, often known as strategic lawsuits against public participation (SLAPP). According to Sprankling, the purpose of the anti-SLAPP statute goes beyond the First Amendment to ensure that speech is not chilled through litigation, as alleged in this case.
In their anti-SLAPP motion, Ripps and Cahen argued that Yuga Labs initiated the lawsuit primarily to stifle their “protest” art and burden them with legal expenses. However, the judges were primarily interested in the secondary sales of the NFTs, seemingly dismissing arguments related to artistic criticism.
Judge Anthony Johnstone responded to Sprankling’s argument by pointing out that “He was selling the same images, on the same marketplaces, on virtually indistinguishable NFT identifiers.” Judge Morgan Christen echoed this sentiment by stating, “I’m still not seeing it.”
Yuga Labs had initially filed a complaint against Ripps and Cahen in July 2022, alleging that they made millions of dollars through trademark infringement, false advertising, and unfair competition when they released a derivative NFT collection called RR/BAYC. On April 21, a California District Court determined that Ripps and Cahen had indeed infringed Yuga Lab’s trademarks with their RR/BAYC NFT collection. While Californian District Court Judge John Walter has already held a bench trial to assess the extent of damages owed to Yuga Labs, the final verdict in the case is yet to be announced.
Image by freepik
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