Annie Leibovitz v. Paramount Pictures Corporation
137 F.3d 109, 1998 U.S. App. LEXIS 2693, 45 U.S.P.Q. 2d (BNA) 1834 (1998)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A commercial work that parodies a copyrighted original may qualify for the fair use defense if it is sufficiently transformative by commenting on the original, even if it copies substantial protected elements, provided it does not serve as a market substitute for the original or its derivatives.
Facts:
- In 1991, photographer Annie Leibovitz created a famous photograph of a nude, pregnant actress Demi Moore for the cover of Vanity Fair magazine.
- The photograph depicted Moore in a serious, artistic pose reminiscent of classical art.
- In 1993, Paramount Pictures Corp. hired an advertising agency to create a 'teaser' ad campaign for its slapstick comedy film, 'Naked Gun 33 1/3: The Final Insult'.
- Paramount approved a concept to parody the Leibovitz photograph.
- Paramount commissioned a new photograph of a nude, pregnant model posed to meticulously replicate Moore's pose, lighting, and camera angle from the original.
- Paramount then digitally superimposed a photograph of actor Leslie Nielsen's smirking face onto the model's body.
- The final composite image, featuring Nielsen's head on the pregnant body, was used in magazine ads with the slogan 'DUE THIS MARCH.'
Procedural Posture:
- Annie Leibovitz sued Paramount Pictures Corp. for copyright infringement in the U.S. District Court for the Southern District of New York.
- Both parties filed cross-motions for summary judgment.
- The District Court granted summary judgment for Paramount, finding that its advertisement was a parody protected by the fair use defense.
- Leibovitz, as appellant, appealed the judgment to the U.S. Court of Appeals for the Second Circuit, where Paramount is the appellee.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a commercial advertisement that parodies a famous photograph by closely mimicking its composition and style, but replacing the subject's head with a comedic actor's face, constitute fair use under the Copyright Act?
Opinions:
Majority - Judge Jon O. Newman
Yes. The advertisement constitutes a parody protected by the fair use defense. The court applied the four-factor fair use test as clarified in 'Campbell v. Acuff-Rose Music, Inc.' First, regarding the purpose and character of the use, the ad is highly 'transformative.' By juxtaposing Leslie Nielsen's smirking face with the serious pose of the original, it comments on the 'seriousness, even the pretentiousness' of Leibovitz's photograph through ridicule. While the ad's commercial purpose weighs against fair use, this is overcome by its strong parodic character. Second, concerning the nature of the copyrighted work, the fact that Leibovitz’s photo is a creative work favors her, but this factor carries little weight in parody cases, as parodies almost always target well-known, expressive works. Third, as to the amount and substantiality used, Paramount copied significant protected elements of the original, but a parody must be able to 'conjure up' the original to be effective. Since the ad's primary purpose is parody and it does not act as a market substitute (factor four), the extensive copying was deemed reasonable. Fourth, regarding the effect on the potential market, Leibovitz conceded that the ad did not harm the market for her photograph or for derivative works. The loss of a licensing fee is not a cognizable harm when the use is a protected parody. Weighing these factors together, the balance 'markedly favors' a finding of fair use.
Analysis:
This decision solidifies the application of the 'Campbell v. Acuff-Rose' framework to parody, confirming that even a work created solely for commercial advertising can qualify for the fair use defense. It emphasizes that a commercial purpose does not create a presumption against fair use but is just one factor to be weighed in a case-by-case analysis. The ruling also clarifies that for a parody, a strong showing on the transformative nature (factor one) and lack of market harm (factor four) can outweigh the creative nature of the original (factor two) and the substantiality of the copying (factor three). This provides significant protection for creators of parody in commercial settings.
