Another excerp from the DMCA counter claim regarding a total BS take-down notice by “The Dash” author and copyright troll Linda Ellis. All pretty self explanatory, and in plain English that hopefully even the dirtiest of trolls can understand.
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,
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.” ttp://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.
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