Intellectual Property Rights

Leibovitz v. Paramount Pictures Corporation

137 F.3d 109 (2d Cir. 1998)

Facts

Photographer Annie Leibovitz created a well-known Vanity Fair portrait of actress Demi Moore.
Moore appeared nude and pregnant in a serious, carefully lit pose.
Paramount produced an advertisement for the comedy film Naked Gun 33⅓.
The advertisement reproduced a similar pregnant pose and composition but placed actor Leslie Nielsen’s smiling face on the body of a pregnant model.
Paramount intentionally designed the advertisement to evoke Leibovitz’s photograph.
Leibovitz sued for copyright infringement.
Paramount admitted that the advertisement borrowed from the photograph but argued that it was a fair-use parody.
The District Court accepted the fair-use defence, and Leibovitz appealed.

Parody may qualify as fair use where it imitates an original work in order to comment upon or ridicule it.
A parody must evoke enough of the original for audiences to recognise the target.
Commercial purpose weighs against fair use but is not conclusive.
The four fair-use factors examine:
purpose and character;
nature of the work;
amount taken;
effect on the market.
The more transformative the new work, the less weight commerciality carries.
Market harm is limited where the parody does not substitute for the original or its normal derivative market.

Paramount’s advertisement clearly referred to the Leibovitz portrait.
The serious and glamorous presentation of pregnancy in the original was contrasted with the absurd image of an older male comedian appearing pregnant.
This contrast commented upon the original’s solemnity and recognisable style.
Unlike a work using another’s photograph merely as convenient material, the joke depended upon the audience recognising the specific Leibovitz image.
The advertisement therefore qualified as parody rather than unrelated satire.
Paramount used a similar pose, lighting and body arrangement.
However, those features were necessary to “conjure up” the original.
The addition of Leslie Nielsen’s face, comic expression and film context transformed the message and effect.
Although the advertisement promoted a commercial film, it did not merely exploit the original for the same expressive purpose.
The original was a serious celebrity portrait; the advertisement was comic commentary and promotion.
The Court found little risk that consumers would purchase the Paramount advertisement instead of Leibovitz’s photograph.
Nor was there persuasive evidence of an ordinary licensing market for parodies of the photograph.
Copyright owners cannot ordinarily prevent criticism or parody by claiming a right to license all critical uses.
The creative nature of the original favoured Leibovitz, but the remaining factors, particularly transformation and limited market substitution, favoured Paramount.

The Second Circuit held that Paramount’s advertisement was a fair-use parody.
Its commercial character did not outweigh its transformative comic purpose.
The copying was limited to what was reasonably necessary to evoke the original.
Use this case for: a commercial advertisement may qualify as fair-use parody when it recognisably transforms and comments upon the original without substituting for its market.