THIS AGREEMENT (the “Agreement”) is made effective this 10th day of June, 2019 (the “Effective Date”), by and between Xxxx Xxxxx (“Furie”) of San Xxxx Obispo County, California, and Infowars, LLC and Free Speech Systems, LLC (collectively, “Infowars”).
WHEREAS Furie owns the copyrights in the character, likeness, image, and name of Pepe the Frog (“Pepe”);
WHEREAS Infowars sold a poster under the name “MAGA Poster 16 × 24” (the “Work”);
WHEREAS Infowars stopped sales of the Work on or about June 19, 2018;
WHEREAS the Work includes a depiction of the character, likeness, and image of Pepe;
WHEREAS Furie has asserted that Infowars’s sale of the Work infringes Furie’s copyrights;
WHEREAS Furie filed a complaint on March 5, 2018 in the United States District Court for the Central District of California, Furie v. Infowars, Civil Action No. 18-1830, alleging copyright infringement by Infowars;
WHEREAS the parties wish to resolve their dispute without further legal proceedings;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby mutually agree as follows:
1. Payment. In settlement of their dispute, Infowars agrees to pay Furie the sum of
$15,000 (the “Payment Amount”) within seven (7) days of the Effective Date of this Agreement. Payment of the Payment Amount may be by certified check or money order payable to Xxxx Xxxxx, delivered to Furie’s counsel (Xxxxx Xxxxxxx, WilmerHale, 00 Xxxxx Xxxxxx, Xxxxxx, XX 02109), or by any other form mutually agreed to by counsel for the Parties.
2. Destruction of Work. Infowars represents and warrants that it will not, on or after the Effective Date, sell or otherwise transfer possession of any copies of the Work, in physical form, electronic form, or otherwise, to any person. Infowars represents and warrants that within five (5) days of the Effective Date, Infowars will destroy all copies of the Work in its possession, custody, or control.
3. Agreement Not To Use Copyrighted Work. Infowars agrees not to sell the character, image, or likeness of Pepe on or after the Effective Date of the Agreement without a license to do so. Infowars agrees that breach of this provision of the Agreement is material, and that, in the event of breach, Furie will be entitled to injunctive relief because the harm from such breach would be irreparable and that no adequate monetary remedies would be available.
4. Release and Dismissal. In consideration of payment of the Payment Amount and other good and valuable consideration, Furie hereby voluntarily releases Infowars from and against Furie’s claim that Infowars’s sale of the Work prior to the Effective Date infringes Furie’s copyrights. Upon execution of this Agreement, Furie’s counsel will file a joint stipulation of dismissal that states: “Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiff Xxxx Xxxxx and Defendants Infowars, LLC and Free Speech Systems, LLC, by and through their counsel, hereby stipulate to the dismissal with prejudice of Plaintiff’s claims against Defendants, with the parties to bear their own costs and attorneys’ fees.”
5. Assignment. This Agreement shall be binding upon and inure to the benefit of the respective Parties and their successors. Neither party may assign this Agreement.
6. Headings. The headings appearing herein have been inserted solely for the convenience of the parties hereto and shall not affect the construction, meaning, or interpretation of this Agreement.
7. No Interpretation Against Drafter. This Agreement has been fully and freely negotiated by the parties hereto with the advice of legal counsel, shall be considered as having been drafted jointly by the parties hereto, and shall be interpreted and construed as if so drafted, without construction in favor of or against any party on account of its participation in the drafting hereof.
8. Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed an original, but all of which together shall constitute one and the same instrument. An electronic file in .pdf format that carries a signature shall be the equivalent of a signed original.
We, the Parties to this Agreement, have read the Agreement and consent to be bound by all its terms and perform accordingly:
Infowars LLC, and Free Speech Systems, LLC Date