The lawyer representing NFT artist Ryder Ripps and his co-founder, Jeremy Cahen (known as "Pauly" on X), faced challenges in persuading a panel of judges to dismiss the lawsuit filed by the Bored Ape Yacht Club against his clients.

During a hearing on October 17, three judges from the United States Court of Appeals for the Ninth District appeared doubtful about the arguments presented by Ripps and Cahen's attorney. He argued that the case should be dismissed on the basis of free speech, claiming that the imitation Bored Ape NFTs were sold and distributed as a form of protest against alleged concealed anti-Semitic imagery in the original collection.

Ripps and Cahen's legal representative, Thomas Sprankling, stressed that Ryder Ripps was selling the NFTs as avant-garde artistic expression that pushed the boundaries of free speech. He contended that Yuga's lawsuit should be dismissed under a California law designed to prevent intimidating lawsuits, known as strategic lawsuits against public participation (SLAPP).

Sprankling explained that California's anti-SLAPP statute serves as a preemptive measure, extending beyond First Amendment protections to ensure individuals are not threatened or discouraged from expressing themselves freely. The hearing highlighted the intricate complexities surrounding the intersection of free speech, artistic expression, and NFTs in the legal context.

The anti-SLAPP motion argued that Yuga Labs had filed the lawsuit in response to Ripps' criticism of Bored Apes on social media, with the intent of silencing him and burdening him with legal expenses.

However, the judges on the panel appeared skeptical of this argument, focusing their analysis on the secondary sale of the copycat NFTs rather than Ripps and Cahen's additional criticisms.

Circuit Judge Morgan Christen expressed skepticism, stating, "I'm still not seeing it," and suggesting that they were seeking a clearer principle to determine the permissibility of this legal action.

The Legal Battle Unfolds as the Artist Accuses Bored Ape NFTs of Controversial Imagery

In January 2022, Ripps began posting on his social media platforms, alleging that BAYC NFT artwork contained racist caricatures of Black and Asian individuals, and that the project's logo and branding included references to Nazi symbolism and language.

In mid-May, Ryder Ripps launched RR/BAYC (Ryder Ripps Bored Ape Yacht Club), an NFT project that directly borrowed imagery and names from BAYC as a form of conceptual art protest.

In June 2022, Yuga Labs initiated legal proceedings against Ripps and Cahen, accusing them of making millions of dollars through trademark infringement, false advertising, cybersquatting, and other charges. This legal action stemmed from the release of a derivative NFT collection named RR/BAYC.

Yuga Labs' legal team argued that RR/BAYC was intentionally causing confusion among potential BAYC customers, leading them to believe that RR/BAYC had a legitimate association with Yuga Labs.

In response, Ripps has contended that the RR/BAYC project serves as a form of satire and appropriation, with the intention of protesting and educating people about BAYC and the world of NFTs.

In April, a United States District Court for the Central District of California found that Ripps and Cahen had infringed Yuga Lab’s trademarks with their NFT collection.

The court ruled that Yuga Labs is entitled to an injunction and damages, which will be determined later at trial to assess the extent of damages to be paid to Yuga Labs.

However, District Court Judge John Walter of California has already conducted a bench trial to evaluate the scope of damages but has yet to announce the conclusion of the case, including the potential damages fee to be paid.