Fair Use of the Week: Trollface – by “Shirley B”

This week on Fair Use of the Week we will be talking about Trollface.  Yes, trollface.  If you haven’t heard of it, or at least seen it, then you’re probably eighty and not spending enough time on the internet.  “Trolling,” which originally was used to describe a fishing technique in which one would drag a lure through the water to bait the fish out, now, in the digital world, describes the act of goading someone to elicit a reaction.  Whether someone does it “for the lulz” or some other reason, trolling has become annoyingly common, and Trollface is its symbol.  But now, Trollface’s widespread usage is under attack by its purported creator, a deviant art user who goes by the username Whynne.  Whynne alleges that users of the link aggregation and social media website Reddit.com, specifically of the subreddit “F7U12,” or “FFFFFFFUUUUUUUUUUUU,” has used his copyrighted image in a manner “devastatingly injurious to its original iconic value.”

Whynne's email complaining of copyright infringement.

Trollface purportedly first appeared in one of Whynne’s comics, seen here.  This week, we will determine whether or not Trollface and its use in rage comics on Reddit.com is fair.  To do that, we will look at the history of the image itself and the nature of the images as they are featured in specifically on Reddit.

This case is different from many of the others we have covered because Whynne is bringing a complaint against both Reddit and a group of Redditors, rather than a single independent actor. Because it would be impractical and essentially impossible to look at every single rage comic with Trollface that has ever been created, we will speak in generalizations and primarily about the role that Reddit.com has played in the alleged infringement.

Factor 1: The Purpose and Character of the Use: As we always do in our analyses, for this factor we will look at whether the work is transformative enough to stand up to a fair use claim and whether or not the work is being used in a commericial way.  First, the individual creators of rage comics (hereinafter “F7U12 Redditors”) juxtapose a high resolution image of Trollface with a person’s face that allegedly resembles the image.  While this may seem transformative, it is questionable whether the juxtaposition imparts new meaning on the Trollface.  In fact, the Trollface is probably imparting the meaning onto the actual faces, thereby making the use of Trollface non-transformative.  Second, some F7U12 Redditors may receive advertising profit from their individual websites.  As such, the use of Trollface by F7U12 Redditors who receive advertising profit is commercial and, thus, presumptively unfair.  When taking all this into account, this first factor seems to disfavor the F7U12 Redditors.

Reddit.com’s use, however, falls even more strongly in the realm of non-commercial use.  Reddit.com hosts thumbnail images of the Trollface and only links to the high-resolution images.  The low resolution images hosted by Reddit.com have little commercial value, and the use of them is practically non-commercial.  As such, Reddit.com is, in many ways, a link aggregation and search site like Google.

To understand why Reddit.com’s use of Trollface thumbnails is transformative, one must understand how Reddit.com operates.  Harnessing the wisdom of the crowds, Reddit.com uses a system called “karma.”   “Karma” makes sure that good posts “float” to the top, while posts that people don’t like are buried.  Users comment on the posts, and, similarly, their comments “float” to the top in the way that popular posts do.  From this persecptive, Reddit.com’s “karma” system provides public benefit by identifying newsworthy posts.

Here, the posts in dispute incorporate thumbnail images of Trollface.  These Trollface thumbnails are juxtaposed with Reddit.com’s karma ranking plus the community’s comments.  This makes Reddit.com’s use of thumbnails highly transformative because Reddit.com imparts new meaning on them.  As such, the trollface thumbnails serve an entirely different purpose than what Whynne intended.  This transformative use, coupled with the public benefit of Reddit.com, means that the first factor weighs in Reddit.com’s favor.

Factor 2: The Nature of the Copyrighted Work: Whynne originally made Trollface without any commercial motivation.  Trollface is itself a fair use of another’s drawing.   As Whynne admits, Trollface was his own attempt to draw Rape Rodent, and Rape Rodent itself was an attempt to draw Mighty Mouse.  The drawing of Mighty Mouse came out looking so creepy it earned the monikers “Rape Rodent” and “Molester Mouse.”  However, Whynne has registered his image with the U.S. Copyright Office and thus removed his image from the public domain.  Whynne has a right to make derivatives of his original comic, and because Trollface is a derivative work from Whynne’s original comic, it is protected by copyright.  As such, this factor weighs against the F7U12 Redditors.  Similarly, because the photos appeared on the internet before Reddit.com used corresponding thumbnail versions in its social news website, this factor weighs slightly against Reddit.com.

Factor 3: The Amount and Substantiality of the Portion Used: Trollface first appeared not as a standalone image, but as a single panel in a comic. Users of Reddit do not replicate Whynne’s entire comic, but only take the face itself.  Still, they replicate the face in its high-rez entirety.   This means that this first factor weighs against the F7U12 Redditors.

Conversely, Reddit.com only hosts and displays thumbnails on its site.  The high resolution images are kept on websites that specialize in image hosting, like imgur.com, to which Reddit links.  The use of thumbnails by a search provider, as the court in Perfect 10 v. Amazon.com held, constitute a reasonable amount of copying.  Using something less than a thumbnail would be unhelpful to a computer user.  Therefore, this factor weighs heavily in favor of Reddit.com.

Factor 4: The Effect of Use Upon Potential Markets: It is foremost important to identify the potential harm to the relevant markets.  Whynne makes a profit on his illustration by licensing it for merchandise. For example, he licenses his image with Deviant Art, which sells shirts, hats, buttons, bags, and even keychains on its site.  Whynne also has a line of Trollface soaps with the British website soapier.com and has tried to have Hot Topic carry a line of Trollface t-shirts.  These pieces of merchandise utilize high-resolution images of Trollface.

Whynne alleges in his complaint that the use of Trollface by F7U12 Redditors has harmed his original comic’s “iconic value.”  If Trollface fans were buying comics by F7U12 Redditors, we would agree.  However, from our research, no F7U12 Redditors are selling their comics.  Nevertheless, to the extent that F7U12 Redditors are reproducing high-resolution Trollface images without a license and then profiting from such use, we do think that they are harming Whynne’s potential licensing market.  Yet, this distinction between for-profit and not-for-profit F7U12 Redditors is artificial because none of the F7U12 Redditors’ uses are transformative.  When there is no transformative use, there is a presumption of market harm, which means this fourth fair use factor weighs against all of the F7U12 Redditors.

On the other hand, Reddit.com’s use has hardly harmed the market for Whynne’s full-size images and Trollface licenses.  Reddit.com’s low resolution, thumbnail images were highly transformative, and any allegation of market harm would be purely speculative–especially since there is, arguably, no commercial market for thumbnail images.  Therefore, this fourth fair use factor weighs in favor of Reddit.com.

Conclusion: Weighing the fair use factors leads to the conclusion that the F7U12 Redditors’ uses were unfair as none of the factors weigh in their favor.  But weighing the factors also leads to the conclusion that Reddit.com’s use was a fair one, especially in light of the public utility served by its “karma” feature and the transformative nature of its use.

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