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February 25, 2014 New Dream Network LLC dba DreamHostAttn: Karl Fry 707 Wilshire Blvd.

Suite 5050 Los Angeles, CA 90017 Dear New Dream Network LLC dba DreamHostAttn: Karl Fry; Please be advised that I represent and Lucia Liljegren with respect to a DMCA takedown notice sent by Linda Ellis c/o Linda’s Lyrics, LLC. This letter is written in response to your removal of content in response to that notice pursuant to 17 U.S.C. Section 512 (DMCA). The material removed is not an actual image hosted on the site but rather the html link that caused an embedded display of an alleged infringing image (i.e. a hyperlink to an image). For the remainder of this letter, this image will be referred to as “Linda Ellis Troll Caricature.” The specific content removed by you was html contained in a blog post whose url is: The specific image allegedly infringed was not and has not ever been hosted at Rather, it is hosted at the following location: The post as it appeared prior to removal of the inline link is shown below:

The complainant, Linda Ellis, alleges that “Linda Ellis Troll Caricature” is a derivative copy of an image she refers to as “Author Linda Ellis” and further alleges that display of “Linda Ellis Troll Caricature” violates her exclusive rights to the underlying image. Intellectual property rights-holders must satisfy two requirements to present a prima facie case of direct copyright infringement: (1) they must show ownership of the allegedly infringed material, and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under the Copyright Act. 17 U.S.C.A. §§ 106, 501(a). Initially, I would note that Ms. Ellis provides no actual proof of her exclusive ownership to the image. It’s also not clear whether her or her company, Linda’s Lyrics LLC which is named in the letterhead, is the actual owner of the image. But more importantly, the DMCA takedown notice ignores several key and basic principles of copyright law that establish that has not infringed on any intellectual property rights that Ms. Ellis or her company may have in the image under the Copyright Act. The hyperlink was therefore removed or disabled in error and should be restored immediately. I will address each of the established principles that permit’s use of the subject image on its site: (1) To hyperlink is not infringe: is not hosting or displaying an image; it is hyperlinking to an image hosted on another unrelated site. In fact, “[did] not have a copy of the images for purposes of the Copyright Act .. it [did] not have any “material objects . .. in which [the] work [was] fixed . . . and from which the work [could] be perceived, reproduced, or otherwise communicated” and thus [could not and did not] communicate a copy ” (Quote from Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007), holding that to hyperlink is not to infringe). The 9th Circuit in Perfect 10 made it abundantly clear that what did with respect to the image is not copyright infringement when it stated at page 1161 of the decision:
[A website] does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when [it] frames in-line linked images that appear on a user's computer screen. Because [it’s] computers do not store the photographic images, [it] does not have a copy of the images for purposes of the Copyright Act. In other words, [it] does not have any “material objects ... in which a work is fixed ... and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy. 17 U.S.C. § 101.

This issue alone resolves the mistaken claim of Ms. Ellis and/or her company or whoever owns the rights in the image. Since did not display the image, it did not infringe on anyone’s exclusive right to display the image.

(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.

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. (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 selfrepresentation 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.” 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. Conclusion Putting aside that no proof was submitted of ownership of the image – I will trust that Ms. Ellis or her company or a related entity owns the image for purposes of this letter – the link must be restored. The link should not be disabled because the site is not displaying a copy at all under Federal law and the linked-to image is a fair, transformative, and parody use of the subject image which does not impede the market value of the subject image and which does not infringe on Ms. Ellis’ rights to use the image. Because the claimant’s takedown notice is based on erroneous interpretations of copyright law, I request the html removed by Dreamhost be reinstated immediately on the subject blog post so “Linda Ellis Troll Caricature” will be hyperlinked as it was previously. Attached it the declaration of Lucia Liljegren, the owner of Thank you for your attention in this matter. Sincerely,


Declaration of Lucia Liljegren: I declare that this is true and accurate under penalty of perjury under the laws of the United States of America. I have read the response to the DMCA takedown notice of Linda Ellis drafted by my counsel Oscar Michelen, dated February 25, 2014, and incorporate it by reference herein. For the purposes of this matter, I consent to the jurisdiction of the Federal District Court for the judicial district in which I reside, i.e. The United States District Court for the Northern District of Illinois, Eastern Division. I also consent to service of process by the person providing notification under Section 512(c)(1)(C) or that person’s agent. However, by this letter, I do not waive any other rights, including the ability to pursue an action for the removal or disabling of access to this material, if wrongful. Having complied with the requirements of Section 512(g)(3), I remind you that you must now replace the blocked or removed material and cease disabling access to it within fourteen business days of your receipt of this notice. Please notify me when this has been done. I appreciate your prompt attention to this matter. If you have any questions about this notice, please do not hesitate to contact me. Sincerely,

Lucia Liligeren