Some of you are aware Serial DMCA writer and Author of The Dash sent a DMCA takedown notice to my hosting company requesting a take down of this image which is hosted elsewhere, but which I display using an inline link.
After receiving the notice, I pondered what to do. Finally, for multiple reasons, I decided I would write a counter DMCA. I sent along the boilerplate counterstrike information along accompanied with a detailed discussion of the reasons why the notion that this image violates Ms. Ellis copyright is incorrect in a number of regards. The Explanation. (Note: owning to the formatting, the first draft at the boiler plate was poor because some required information was in the attachment. So, we rewrote that and resubmitted co-locating all the pledge about not committing perjury and so on and so forth. Consequently, we lost a bit of time. But time was not of the essence here.)
Now: many will note that only the boilerplate was legally required (and Dreamhost agrees. That’s what they need.) However, the purpose of the additional information is to:
- Explain to people in general why I stand firm that this is fair use explaining why I believe it is so.
- Explain to people that even if the ‘anonmgur.com’ who hosting violated Ms. Ellis’s copyright, I believe my hyperlinking is not infringing anyway– or at least so the 9th circuit has found. (The 7th circuit has a similar finding in Flava Works). Note: hyperlinking might be infringing if I had uploaded to the other site, or if I encouraged others to upload so that I could later hyperlink. But that happens not to be the case. I simply noticed the link to the image elsewhere on the web and created a link myself.
In light of the first point, I will quote extensively from what I wrote in my letter to Dreamhost
2) To transform is not to infringe:
The next right Ms. Ellis relies upon is a rights-holder’s exclusive right to make derivative forms of the work. Based on the wording of the claimant’s take down request, it appears she may be unaware that the “fair use†provision of the copyright act permits creation and display of some derivatives without obtaining permission from the owner of the original’s copyright. Permissible use under the doctrine of “fair use†applies to “Linda Ellis Troll Caricature,†which is highly transformative. The transformation of expression and meaning is evident through side-by-side inspection of the two images.
[ A side by side image is inserted in the text here.-L]
The original “Author Linda Ellis†portrays Ms. Ellis as friendly, open approachable person with the sort of personality one might expect of the author of an inspirational poem advising listeners to consider the value of their actions during the short period of time between birth and death (i.e. One’s “Dashâ€). “Linda Ellis Troll Caricature” portrays her as an eerily gleeful, glowing-eyed, fang-tooth, gingivitis-stricken troll whose nature might inspire it to dedicate “Her Dash†to demand large monetary sums from those who may have quoted an inspirational poem advising listeners to consider the value of their actions during the short period of time between birth and death (i.e. “The Dashâ€).
A work is “transformative†–and therefore not infringing – when the new work does not “merely supersede the objects of the original creation†but rather “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.†Campbell v. Acuff-Rose Music Inc 510 U.S. 569 (1994). Even making an exact copy of a work may be transformative so long as the copy serves a different function than the original work, Kelly v. Arriba Soft Corp., 336 F.3d 811 at 818–19.( 9th Cir. 2003) For example, the First Circuit has held that the republication of photos taken for a modeling portfolio in a newspaper was transformative because the photos served to inform, as well as entertain. See Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 22–23 (1st Cir.2000).
The 9th Circuit, once again in Perfect 10, held that reducing the image from an actual image to a hyperlinked thumbnail was in and of itself transformative.†So once again this could end the analysis at this point. However, the linked image is itself a transformative use of the original image; only the hair of the two people displayed in the image is not transformed. “A use is considered transformative where an alleged infringer changes a . . . copyrighted work or uses a … copyrighted work in a different context such that the . . . work is transformed into a new creation.†Wall Data Inc. v. Los Angeles County Sheriff’s Department, 447 F.3d 769 (9th Cir. 2006). Can it be seriously argued that the Troll image does not transform the original image? Can an image be more transformative?
Furthermore, part of the fair use analysis requires examining whether the use supersedes or replaces the original use (it does not); whether the allegedly infringing use took more than was necessary of the original to make the transformation (it did not and in fact in Perfect 10 the defendant took 100% of the image but the court held that was needed to make the transformative use it wanted); and whether the use overly damaged the market for the original use (it did not – there is no market for the original use).
Therefore, the inline linked image was a proper, legal, transformative use of the original image.
(3) To parody is not to infringe:
The transformation in “Linda Ellis Troll†also parodies both the original image and the subject of the image. The former is parodied with regard to how the photographer chose to portray the subject and latter is parodied with the subjects own choice of self-representation on “about Linda†pages at her own site. Ms. Ellis’s representation is provided below,
[ An image proving that this is the image Ellis uses to represent herself is inserted in the text here. -L]
So this image also parodies Ms. Ellis’s online persona as a life-affirming poetess by declaring her as a “copyright troll.†Wikipedia defines copyright troll “as a pejorative term for a party that enforces copyrights it owns for purposes of making money through litigation, in a manner considered unduly aggressive or opportunistic, generally without producing or licensing the works it owns for paid distribution. Critics object to the activity because they believe it does not encourage the production of creative works, but instead makes money through the inequities and unintended consequences of high statutory damages provisions in copyright laws intended to encourage creation of such works.†http://en.wikipedia.org/wiki/Copyright_troll. While Ms. Ellis does own the work which is the subject matter of her trolling, her activities otherwise fit the definition.
Parody is an element of fair use; the “fair use defense†“permits the use of copyrighted works without the copyright owner’s consent under certain situations; the defense encourages and allows the development of new ideas that build on earlier ones, thus providing a necessary counterbalance to the copyright law’s goal of protecting creators’ work product.†Campbell v. Acuff-Rose Music Inc 510 U.S. 569, 575 (1994).
In the parody context, “the ‘amount and substantiality of portion used’ factor of the fair use defense to copyright infringement turns on the persuasiveness of a parodist’s justification for the particular copying done, and the extent of permissible copying varies with the purpose and character of the use; the analysis of this factor will also tend to address the market effect factor, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives.†Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, 868 F.Supp2 d.962 (C. Dist Calif. 2012).
Here, there is no chance this parody may serve as a market substitute. Copying Ms. Ellis’ face was necessary to parody her appearance and convert her to a “troll.†Under the above analysis therefore, this parody is a fair use of Ms. Ellis’ image.
The quoting covers much of what is in the pdf which contains additional discussion of the hyperlinking issues.
The current status is: Ms. Ellis sent no notice to Dreamhost and the image is restored. This action removes any liability from Dreamhost (who has acted in an exemplary fashion in this.) Ms. Ellis may still elect to sue me. That said: To avoid summary dismissal in any suit in the US, I’m pretty sure Linda Ellis must first register the copyright. I periodically search the Copyright records and as far as I can determine she has not registered this image which one would imagine was shot by someone else, though it might be a “selfie”. Who knows?
Update March 28: I am taking the liberty of adding links to posts that mention Linda Ellis’s take down notices. I’ll add links as I find them. I am also going to keep comments open on this thread, and open comments on all Linda Ellis threads.
- Greg Troy writes about the need for DMCA to be modified to make it easier to fine people who file false DMCA notices. Of course, unless one is granted access to discover after a case is pursued, the person on the receiving end of a takedown can almost never be certain an DMCA take down was actually false, but Linda’s history of sending takedowns at which are countered and not followed up with any suit is noted in that article. These have occurred at my site and April Brown’s site. (March 28)
- April Brown reports writing a counter DMCA when Linda Ellis filed a DMCA takedown. This takedown had great potential to damage Ms. Brown who uses videos to promote her auction busines. Brown’s youtube videos were restored. (March 28)
Well done, Lucia. Don’t ever give in to those who would decry free speech.
Nicely played LL…
Can she be sued for financial damages as well? Trolls do need to be taught a lesson, not just put in their place (under a bridge).
I have to disagree with you there. I see no evidence of gingivitis.
No, she doesn’t have to register to avoid dismissal. From the wikipedia page on US copyright law: “As the United States has joined the Berne Convention, registration is no longer necessary to provide copyright protection. However, registration is still necessary to obtain statutory damages in case of infringement.â€
Agree with the rest of your analysis.
Yikes! She looks charming.
.
Hummm… if it is OK to do a “she’s a witch” photo-shop makeover of a woman who constantly threatens lawsuits, maybe a “he’s a warlock” photo-shop makeover of Mike Mann is long past due. 😉
Of course, to win ‘fair use’ it has to be ‘transformative enough’ and also, it really helps to have a reason why that particular photo is used and that reason should not be related to the specific creative (i.e. copyrightable) elements in the photo. So here: the reason that image is chosen is that it’s one the author used then (and still uses) to represent herself. It was not chosen because her pose or the existing lighting or anything else made it especially ‘easy’ to turn into a troll. To achieve the ‘comment’ or make the ‘speech’ on wishes to make, one could not follow her around, get a snap shot and use that– because in that case, one would no longer be parodying the self-representation of the author.
HaroldW
Her gums look red to me!!
At least that’s my view on this.
SteveTA
DMCA provides for that possibility. But one must first sustain damages. But the only effects her take down request had were
1) that Dreamhost took down in image link to the troll image. Since I make no money from that image appearing, there are no financial damages.
2) I had to write a letter and had an attorny legalese it up some. Those who recognize my style can likely see where the attorney’s stuff is interlaced with mine. (The “eerily gleeful, glowing-eyed, fang-tooth, gingivitis-stricken troll” and decision to call it “Linda Ellis Troll Caricature†is mine. Thinks like ‘Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, 868 F.Supp2 d.962 (C. Dist Calif. 2012)’ are the attorney. )
Re: lucia (Mar 27 12:18),
Me too. It’s the redness at the gum line that is diagnostic, as I remember. I see gum line redness starting at the left incisor and continuing behind.
Lucia, DeWitt –
I guess that’s why I’m not a dentist.
Somehow Stevef, I don’t think Mann’s countenance needs any work.
She looks like one of my conquests during my drinking days.
The one picture of Linda reminds me, sans the dental protrusion, of Dana Patrick – perhaps right after spray painting her race car.
You need real legal rep, call and I will arrange. But you have already done better than 99.9% of Harvard lawyers could have.
She has not a leg (or tooth) to stand on.
Don’t CAGW believers hate it when they receive returning fire?
Thanks RUd! My (realistic) hope is I won’t need any more legal representation because she will not file a suit.
Dang, KF
First, it’s Danica. Second, even with the protrusion (and even some overspray), she would still be hotter than Ms. Ellis. 🙂
RUd Eli thinks you have slipped a tooth.
Reminds me of another Linda. bit.ly/1o5XIho
Steve F,
What a great idea.
Dr. Mann could be a chubby mummy, a pre-zombie era zombie, an undead creature who relentlessly pursues his odd and failed obsession, even long after death. Who seeks out those blessed with humor, rational thought, critical thinking and skeptical minds and dare disagree with his ancient failed magic.
nobody,
With respect to US law, the US copyright statutes trump the both the Berne convention and Wikipedia. With respect to Wikipedia: They are confused. We follow the Berne convention in the sense that copyright exists. But the only way one can institute a civil action is to either (a) have registered the copyright or (b) registered and been refused. In the case of (b) you also sue the copyright office.
Here is the text: http://www.copyright.gov/title17/92chap4.html#411
(Note exclusion (a) is irrelevant to what we are discussing. But you can go ahead, click the link and have a look.)
If what you mean is that non-US copyright owners who created stuff outside the US need not register, that may be so. But US copyright owners who snapped their photos in the US must register first. Linda lives in the US, and I’m pretty sure she took the original in the US.
lucia, Wikipedia isn’t confused on this. nobody has simply misunderstood what it said. As Wikipedia says, registration is not necessary to provide copyright protection. All that means is even if you haven’t registered a copyright, somebody can’t steal your material. If they do, you have grounds for a lawsuit.
Similarly, Wikipedia is right that you must have registered the material to obtain statutory damages. If you didn’t register your copyright prior to the infringement (or within a certain amount of time of it being published), you can’t be awarded statutory damages. You can only be awarded actual damages.
The key here is Wikipedia is talking about having copyright protection, not being able to file a lawsuit. The prerequisites for filing a lawsuit are higher than the prerequisites for having a claim to a copyright.
Brandon–
Your correct about the requirements. I guess I should have checked what wikipedia actually said.
It is
(a) true that copyright exists from the moment of creation and also true that
(b) one must register to file the lawsuit in the US (with possible exception for copyrights in other countries).
One has not lost copyright protection altogether by failing to file because that can be remedied by simply registering once one wishes to pursue civil case. So there is no contradiction between “copyright protection exists” and “must register to file a lawsuit”.
Note that registering late often guarantees that the damages will be low because– in most instances– if a copyright relates to income producing content– people do register fairly promptly (as required by copyright law.) That puts teeth in the copyright law and prevents them from being forced to try to estimate actual damages (which can be difficult). Plus, the can get more than actual damages– which is very useful.
So, for example: I have not registered a copyright on the photo of my cat holding a chipmunk in his mouth. The image is more than 3 months (6 months?) old. If someone violated that copyright and I wanted to pursue it, I could register now and sue. However, damages would be limited to actual damages– which barring some strange unforseeable set of circumstances– would be nearly zero. (Yeah. Someone might make zillions putting his little image on coffee mugs…. but really, it’s unlikely. If someone did that, it might be worth suing to grab back the profits. But… really…. not going to happen. If the photo was stupendously valuable, I would have copyrighted it and made the coffee mugs myself! )
Oh… another thing. Registering very late will prevent registration from being seen as prima facie evidence of owners ship. I think (but am not sure) the threshold is 5 years. So, in the hypothetical that the image above is a “selfie” taken by Linda herself (or copyright she bought or obtained through employment provisions), but was taken before 2009 and a defendant disputed the claim that her copyright registration was valid, the court might not automatically treat the registration as “prima facie” evidence that she owns the copyright and could require her to present evidence that her registration is valid during a request for dismissal. I’m not sure what they would do– but it seems they could request this. (I’m not quite sure how she would ‘prove’ that she was the owner to the courts satisfaction– possibly through some combination of metadata, oral testimony, or paperwork showing a transfer from the actual owner etc. But it could potentially be an issue that would require a finding of fact– which makes things rather difficult. NB: I have no idea how old the original is. And to be honest, the background looks like it might be the curtain in a photobooth, and so the photo may have been snapped in a photo-booth. If so that could raise all sorts of legal issues for copyright scholar to debate! )
The chipmunk may sue for wrongful cat-nip.
Could Linda Ellis’s victims file a class action suit?
It’s not copyright it’s the DCMA
http://retractionwatch.com/2014/03/14/fight-against-false-copyright-claims-goes-to-capitol-hill/
I find myself in agreement with the bunny.
Canman,
I don’t know. If the answer is yes, there would be two separate issues:
1) The ones who receive the demands for having posted “The Dash”.
2) The ones who were subject to DMCA takedown notices.
There are loads of people in category 1. But I think they have no standing to sue. Bear in mind: class action requires that each member of the class could sue individually, but the suit combines all similar members. And I don’t think any of those people can sue individually. This has been discussed ad naseum on ELI, and really, it’s difficult to see a hook for a class action.
Category 2: There is potential there– but I’d have to look at DMCA to figure out what the potential damages are. There are at least 2 in category 2. April Brown and me. April received a whole bunch of these. I am aware of someone whose host got letters but those didn’t conform with DMCA so the host did nothing — in conformance with the law. Those people don’t fall in category 2 because there was no DMCA takedown request. But I have to say: 2 people don’t seem well suited to “class action”.
It’s better for someone like Automatic who has to process lots of DMCA’s to go after something like this. Alas, I’m not on wordpress.com, so… not involved in that.
Eli,
Thanks for the breadcrumb to the retraction watch discussion. I’ve posted a comment at their post discussing the issue:
http://retractionwatch.com/2014/03/14/fight-against-false-copyright-claims-goes-to-capitol-hill/#comment-87748
The whole DMCA issue brings up some significant issues. On the one hand there are the rights of artists, musicians and other *content producers* to keep control over and make a living from their ‘art’ [in the legal sense of the word], the rights of other *copyright holders* who are not content producers, and the individual’s right to use the content under the law. There is also a third group we don’t often think about in terms of DMCA that is ‘us’, the public.
The function of copyright other intellectual property rights laws is to create and mediate the boundary between content producer and the public domain [culture]. The the artist needs to be able to support themselves so they can continue to be productive; the public needs artists and musicians to produce their art so that larger society can have a culture that is vibrant and growing. At some point society needs to own its ‘own’ culture in order to use it freely, thus need for the copyright, the patent, and the public domain. All of those intellectual property notions grant a limited period of protected exclusivity – protected by society and the law – with the understanding that at the end of that period the art becomes *owned* by society and becomes a permanent part of culture for society to use freely and elaborate upon – so we can continue to have a culture relevant to our current age.
There is a fascinating video on UTube by Nate Harrison that illustrates some of the issues involved in copyrights and the public domain: “Video explains the world’s most important 6-sec drum loop,” which will open your eyes, or ears as the case may be. The video describes the history of the so called “Amen Break” a four bar drum break performed in 1969 by “G. C.” Coleman in the song “Amen, Brother” by The Winstons. This ‘bit of business’ was theoretically covered by copyright, but it became one of the most widely “sampled” and “covered” fragments of music in history to the extent that other media companies hoovered it up and included in their own compilations, copyrighted that and tried to enforce that [likely illegal] copyright upon anyone else they could find in the ‘public domain’ using that bit of G. C.” Coleman’s work. Coleman has never received any royalties for the “Amen Break.”
Something to think about if we want to have a public domain in the future.
https://www.youtube.com/watch?v=5SaFTm2bcac#aid=P8qlTYhyuVA
Nate Harrison can be found here: http://nkhstudio.com/
W^3
Lucia,
While your technical reasoning on usage of an image may be perfect, there is one particular right in America that trumps many others. The right to sue.
Now assuming that your reasoning is perfect, and I would not bet against you on my best days, you may accidentally step on the toes of a sue-happy monster with enough backing money that they file suit anyway. Say, the ever expanding climate defense fund for example.
The good news is that you would get a chance to practice your budding lawyer career and would have a ton of blogging material!
Jeff Id,
Agreed. Anyone can always file a suit and one can file about anything.
I thought about that when writing the counter DMCA and also when writing this blog post. There is a certain point where one must stand up to certain things and recognize that the litigious might sue. In fact, a person can might sue even if you don’t stand up to their demands and cave. I considered both factors.
There’s a piece called The Rainbow Bridge, it’s an essay or something about what happens when your pet dies. It’s hokey and sentimental and everyone who has ever lost a pet loves it.
All the dog sites had it up as authored by anonomous. In any event, one day a dog lover posted on a site saying, no, it’s not anonomous it’s by this guy and he’s a writer who has written other stuff.
Well, all the dog sites instantly changed the by line and dog lovers all over the country bought books by this guy cause he “got it” about loving your animals. He probably made more money by not complaining then he ever would have by making a fuss.
That’s what this poet should have done, just gone on line and said that’s my poem and I have a whole book of poems. All the fans of the original poem would have bought a book and this fuss would never have happened
Lucia,
I think some of Electronic Frontier Foundation community would find what you are doing as not only a good thing but very interesting.
The internet is not simply in trouble due to government abuse. This one shot wonder of a poet represents a privatized threat to the internet that is in some ways potentially more annoying to the daily lives of people than our big brother.
hunter,
I think if she sued me, it would be worth approaching them for backing and they might well do so. For the time being I am in the same category as tons of people who have been sent DMCA’s. But if they have a place to report events, I would report it so they can add to their tally. I don’t know of such a resource at EFF. If you do, drop a link here so I (and others who might come across this post) can learn of it! Thanks.
hunter,
I’ve asked a few people to help me compile a list of her DMCA takedown requests so I can submit to the EFF “Hall of Shame”. I also read EFF’s legal aid page
https://www.eff.org/pages/legal-assistance
I suspect that if I were sued, I might get an amicus brief out of them or get assistance at later stages (which one hopes would never occur.) They budget for maximum impact, so I think I would at least be on my own at the “request dismissal” stage. I think she would lose at the “request dismissal” stage.
But — for sure– these are the sorts of things that interest them.
“I have not registered a copyright on the photo of my cat holding a chipmunk in his mouth.”
So anyone could photoshop that replacing the cat’s face with Lucia’s and the chipmunk’s with, I don’t know, perhaps the subject of this blog?
lol. Living in Texas we don’t see chipmunks. For all of these years I thought the picture was a photo of a very eccentric cat carrying a small box turtle with its neck extended trying to nip the cat. Now that Lance pointed out that it is a chipmunk, it is so obvious. I never could quite figure out how a cat would be able to hold a turtle……
Lance,
That analogy has been noted several times before…. though the identity of the ‘chipmunk’ changes. I believe one of the earliest chipmunks caught that way was named Tobis.
hunter
Now that you’ve mentioned it, it is very clearly a box turtle!
Lance, lol. There is a lesson about inferences from data and pattern forcing in this someplace……