NFT Artist’s Lawsuit Dismissal Attempt Meets Skepticism

The most recent attempt by nonfungible token (NFT) artist Ryder Ripps to discharge the Bored Ape Yacht Club-related lawsuit against him appears to have been met with skepticism.

At a hearing on October 17, three judges from the United States Court of Appeals for the Ninth District appeared largely unconvinced by the arguments of the attorney representing Ripps and Jeremy Cahen (known on X as “Pauly”), who argued the case should have been dismissed on free speech grounds.

Thomas Sprankling, a partner at WilmerHale and the attorney for Ripps and Cahen, argued that the counterfeit Bored Ape NFTs were sold and disseminated in a manner that protested the allegedly anti-semitic imagery concealed within the Yuga Labs-created collection.

He repeatedly portrayed Ripps and Cahen as selling the NFTs as an avant-garde exercise that pushes the boundaries of speech and argued that Yuga’s suit should have been dismissed under a California law designed to prevent intimidatory lawsuits, known as strategic lawsuits against public participation, or SLAPP.

Sprankling explained to the judges that the anti-SLAPP statute is intended as a “prophylactic” that is, it is intended to go “a little beyond the bounds of the First Amendment to ensure that you’re not threatening people with a chilling speech in litigation, as occurred here.”

In their anti-SLAPP motion, the duo claimed that Yuga Labs filed suit against them solely to silence their “protest” art and drown them in legal expenses.

However, the judges appeared only interested in the secondary sales of the NFTs themselves, essentially disregarding any artistic criticism-based arguments.

In response to Sprankling’s argument, Judge Anthony Johnstone stated, “He was selling the same images on the same marketplaces using virtually identical NFT identifiers.”

“I’m still not seeing it,” Judge Morgan Christen added. Yuga Labs initially filed a complaint against Ripps and Cahen in July 2022, alleging they made millions of dollars through trademark infringement, deceptive advertising, and unfair competition following the release of the derivative NFT collection RR/BAYC.

A California district court ruled on April 21 that Ripps and Cahen’s RR/BAYC NFT collection violated Yuga Lab’s trademarks.

Judge John Walter of the Californian District Court has already conducted a bench trial to determine the amount of damages owed to Yuga Labs, but he has yet to declare the case’s conclusion.