To transform is not to infringe:
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 “Dash”). “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 Dash”). 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.
Link to complete Document: https://rankexploits.com/musings/wp-content/uploads/2014/03/Counterstrike.pdf