Leibovitz v. Paramount Pictures Corp.

Leibovitz v. Paramount Pictures Corp.,
137 F.3d 109 (2d Cir. 1998)
In 1991, Annie Leibovitz, a professional photographer, took a photograph of actress Demi Moore seven months pregnant, which was published on the cover of Vanity Fair Magazine. The photo received significant attention and notoriety. In 1993, Paramount Pictures decided to take a similar photograph of a pregnant model, but superimposed the face of Leslie Nielson onto the model as part of an advertising campaign for the film Naked Gun 33 1/3: The Final Insult. The advertisement was shot using a similar pose and under similar lighting. The composite photograph depicting Nielsen as the pregnant Moore proclaimed, “DUE THIS MARCH.” The advertisement ran nationally and Leibovitz sued for copyright infringement.

The Southern District of New York found the use to be fair, and dismissed the claim for copyright infringement, granting summary judgment for the defendant. Plaintiff appeals the decision before the United States Court of Appeals, Second circuit.

Whether the fair use defense to copyright infringement applies in the context of an advertisement claimed to be a parody of a copyrighted photograph.

Yes. Decision of district court is affirmed.

Examining the four fair use factors, under section 107, the court found that although Paramount's photographer drew heavily from Leibovitz' composition, in light of Paramount's parodic purpose and absence of market harm the use of the photograph was a fair use. The court acknowledges that the statute does not specifically list “parodies” among the categories of potentially “fair” uses, but courts have long afforded such works some measure of protection under this doctrine. The factors are (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the work used, and (4) the effect of the use on the market for the original.
The court weighed the four factors together. As to the first factor, the court found that defendant’s ad adds something new and qualifies as a “transformative” work, and that it “comments” on the original based on the smirking face of Nielsen contrasting so strikingly with the serious expression on the face of Moore. “The ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original.”  The contrast achieves the effect of ridicule and serves as a sufficient “comment” to tip the first factor in defendant’s favor. As to the second factor there is significant creative expression in plaintiff’s photograph (the pose, lighting, etc.), so the court found this factor in favor of Leibovitz. As to the third factor, the amount and substantiality of the portion used, the court found Leibovitz is entitled to no protection for the appearance in her photograph of the body of a nude, pregnant female. Only the photographer's particular expression of such a body is entitled to protection. And as to the fourth factor, the court found that the Paramount photograph did not interfere with any potential market for her photograph or for derivative works based upon it. The court looks to the aggregate assessment for an ultimate decision, and found the balance markedly favors the defendant. Therefore fair use as a parody in light of the four factors under §107, is a valid defense to copyright infringement.

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