Leibovitz v. Paramount Pictures Corporation
137 F.3d 109
United States Court of Appeals, Second Circuit, 1998
FACTS: Plaintiff-appellant Leibovitz is a well known photographer whose works are widely published. The work at issue in this case is a photograph of actress Demi Moore that appeared on the cover of the August 1991 issue of Vanity Fair magazine. Leibovitz photographed Moore, who was pregnant at the time, nude in a pose evocative of Botticelli’s “Birth of Venus.†The issue was one of Vanity Fair’s best selling issues of all time due to the widespread attention the cover photograph garnered. Defendant-appellee Paramount hired an advertising firm to come up with a campaign to promote its motion picture “Naked Gun 33 1/3: The Final Insult†which was released in March 1994. Paramount approved a concept submitted by advertising agency Dazu, Inc. that featured the face of the film’s star, Leslie Nielsen, superimposed on Moore’s body. Notably, rather than mechanically copying Moore’s body from the Leibovitz photo, Paramount commissioned another photograph to be taken of a nude, pregnant woman. To ensure resemblance to the Leibovitz photo, Paramount ensured meticulous details be replicated including the ring on Moore’s finger, the pose and hand placement, and the skin tone and shape of the body. Moore’s serious look was replaced with Nielsen’s mischievous smirk. In early 1994 the campaign ran in a magazine and Leibovitz brought suit over the use.
PROCEDURAL HISTORY: The District Court for the Southern District of New York granted summary judgment for defendant-appellee Paramount Pictures Corp ruling that it was entitled to the defense of fair use. On appeal, appellant Leibovitz argued that the district court erred in granting summary judgment to the defendant, primarily because the defendant’s use was commercial and thus is entitled to little protection under the fair use defense. While recognizing the commercial nature of Paramount’s advertisement, the Second Circuit concluded that the advertisement qualified as a parody entitled to fair use defense analysis and thus affirmed the district court holding in favor of Paramount.
ISSUE: Whether the fair use defense to copyright infringement is available in the context of an advertisement claimed to be a parody of a copyrighted photograph.
HELD: Yes.
ANALYSIS: The Supreme Court in Campbell confirmed that the fair use doctrine applies to parodies. Four statutory factors listed in § 107 of the Copyright Act are to be considered and weighed together when making a determination as to whether a use if fair within the meaning of the Act. These factors include: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the work used, and the effect of the use on the market for, or value of, the original work.
Factor 1: Purpose and character of the alleged infringing use:
The primary inquiry should be whether the copying work “merely supersedes the object of the original or instead adds something new, with further purpose or different character, altering the first with new expression, meaning, or message.†This inquiry is summed up into the question of whether the new use is “transformative.†Rather than judge the quality of the parody, the Court advised that the standard is instead “whether a parodic character may be reasonable perceived.†A critical aspect of this inquiry is “whether the parodic element is slight or great, and the copying small or extensive in relation to the parodic element.†As such, a work with great parodic element and a small amount of copying is more likely to add something new, with a further purpose of different character than the original.
Here, the advertisement adds something new and qualifies as a transformative work. Furthermore, because the smirking face of Neilsen so strikingly contrasts the serious expression of Moore, the ad may reasonably be perceived as commenting on the seriousness of the original, bringing it within one of the purposes for which the fair use doctrine may be invoked under § 107. That the ad is different from the original is not dispositive as to whether it comments. Here, the ad differs in a way that may reasonably be perceived as commenting through ridicule on the seriousness conveyed in the original or the beauty of the pregnant female body. Here, the parody was used to promote a commercial product, the motion picture. However, the strong parodic nature of the ad weighs in favor of finding fair use.
Factor 2: nature of the copyrighted work:
The fact that the copyrighted work is creative and thus close to the core purpose of copyright protection is unlikely to add much in terms of parody analysis “since parodies almost invariably copy publicly known, expressive works. Here, this factor weighs in favor of Leibovitz because the photo qualifies as creative expression. However, little weight is given to the factor in the overall analysis because it arises in the context of parody.
Factor 3: the amount and substantiality of the work used:
The Supreme Court made three significant points concerning analysis of the third factor in relation to parodies: (1) the quantity and quality/importance of the materials taken from the original work should be considered; (2) the parody must conjure up “at least†enough of the original, departing from the previous requirement that for a parody to be entitled to fair use defense it must take “no more than†necessary to conjure up the original; (3) whether the amount and substantiality of the work used is reasonable will depend on the “the extent to which the copying work’s overriding purpose and character is to parody the original, or…the likelihood that the parody may serve as a market substitute for the original."
Here, only Leibovitz’s particular expression of Moore’s nude, female pregnant body is protectable. Specifically artistic elements such as the lighting, the skin tone and camera angle may receive protection. Her depiction of a nude, pregnant body posed in a certain way is not entitled to protection because such posing long ago entered the public domain. Paramount clearly took more of the original than necessary to conjure it up but this is not dispositive as to third factor analysis. Thus, even though the copying was extensive, this factor weighs in favor of fair use because the overriding purpose of the copy was to parody and it is unlikely that the parody will serve as a substitute for the original,
Factor 4: The effect of the alleged infringing use on the potential market for or value of the original:
The Supreme Court noted that a parody will likely not affect the market for the original because the parody and original usually serve different market functions. Here, Leibovitz concedes that the advertisement did not interfere with a market for her photo or for derivative works based upon her photo. She argues that the market harm is deprivation of a licensing fee for use of her work in the ad. However, Leibovitz is not entitled to licensing revenue for a work that qualifies as a fair use. Thus, the fourth factor favors Paramount
Aggregate Assessment of Factors:
In light of the fact that the Supreme Court significantly depreciated the importance of the second factor in the context of parodies commenting on original works, the balance here weighs in favor of defendant. Summary judgment in favor of Paramount is affirmed.
POLICY: Ultimately the fair use doctrine balances the interests of original authors/creators and subsequent authors by lessening the possibility that their 1st Amendment expressive rights will be curtailed.
REMAINING QUESTION: Will the third factor ever weigh in favor of the original author in the parody context because such emphasis is placed on whether the copying of additional, protected amounts of the original work relate directly to the parodic purpose?
137 F.3d 109
United States Court of Appeals, Second Circuit, 1998
FACTS: Plaintiff-appellant Leibovitz is a well known photographer whose works are widely published. The work at issue in this case is a photograph of actress Demi Moore that appeared on the cover of the August 1991 issue of Vanity Fair magazine. Leibovitz photographed Moore, who was pregnant at the time, nude in a pose evocative of Botticelli’s “Birth of Venus.†The issue was one of Vanity Fair’s best selling issues of all time due to the widespread attention the cover photograph garnered. Defendant-appellee Paramount hired an advertising firm to come up with a campaign to promote its motion picture “Naked Gun 33 1/3: The Final Insult†which was released in March 1994. Paramount approved a concept submitted by advertising agency Dazu, Inc. that featured the face of the film’s star, Leslie Nielsen, superimposed on Moore’s body. Notably, rather than mechanically copying Moore’s body from the Leibovitz photo, Paramount commissioned another photograph to be taken of a nude, pregnant woman. To ensure resemblance to the Leibovitz photo, Paramount ensured meticulous details be replicated including the ring on Moore’s finger, the pose and hand placement, and the skin tone and shape of the body. Moore’s serious look was replaced with Nielsen’s mischievous smirk. In early 1994 the campaign ran in a magazine and Leibovitz brought suit over the use.
PROCEDURAL HISTORY: The District Court for the Southern District of New York granted summary judgment for defendant-appellee Paramount Pictures Corp ruling that it was entitled to the defense of fair use. On appeal, appellant Leibovitz argued that the district court erred in granting summary judgment to the defendant, primarily because the defendant’s use was commercial and thus is entitled to little protection under the fair use defense. While recognizing the commercial nature of Paramount’s advertisement, the Second Circuit concluded that the advertisement qualified as a parody entitled to fair use defense analysis and thus affirmed the district court holding in favor of Paramount.
ISSUE: Whether the fair use defense to copyright infringement is available in the context of an advertisement claimed to be a parody of a copyrighted photograph.
HELD: Yes.
ANALYSIS: The Supreme Court in Campbell confirmed that the fair use doctrine applies to parodies. Four statutory factors listed in § 107 of the Copyright Act are to be considered and weighed together when making a determination as to whether a use if fair within the meaning of the Act. These factors include: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the work used, and the effect of the use on the market for, or value of, the original work.
Factor 1: Purpose and character of the alleged infringing use:
The primary inquiry should be whether the copying work “merely supersedes the object of the original or instead adds something new, with further purpose or different character, altering the first with new expression, meaning, or message.†This inquiry is summed up into the question of whether the new use is “transformative.†Rather than judge the quality of the parody, the Court advised that the standard is instead “whether a parodic character may be reasonable perceived.†A critical aspect of this inquiry is “whether the parodic element is slight or great, and the copying small or extensive in relation to the parodic element.†As such, a work with great parodic element and a small amount of copying is more likely to add something new, with a further purpose of different character than the original.
Here, the advertisement adds something new and qualifies as a transformative work. Furthermore, because the smirking face of Neilsen so strikingly contrasts the serious expression of Moore, the ad may reasonably be perceived as commenting on the seriousness of the original, bringing it within one of the purposes for which the fair use doctrine may be invoked under § 107. That the ad is different from the original is not dispositive as to whether it comments. Here, the ad differs in a way that may reasonably be perceived as commenting through ridicule on the seriousness conveyed in the original or the beauty of the pregnant female body. Here, the parody was used to promote a commercial product, the motion picture. However, the strong parodic nature of the ad weighs in favor of finding fair use.
Factor 2: nature of the copyrighted work:
The fact that the copyrighted work is creative and thus close to the core purpose of copyright protection is unlikely to add much in terms of parody analysis “since parodies almost invariably copy publicly known, expressive works. Here, this factor weighs in favor of Leibovitz because the photo qualifies as creative expression. However, little weight is given to the factor in the overall analysis because it arises in the context of parody.
Factor 3: the amount and substantiality of the work used:
The Supreme Court made three significant points concerning analysis of the third factor in relation to parodies: (1) the quantity and quality/importance of the materials taken from the original work should be considered; (2) the parody must conjure up “at least†enough of the original, departing from the previous requirement that for a parody to be entitled to fair use defense it must take “no more than†necessary to conjure up the original; (3) whether the amount and substantiality of the work used is reasonable will depend on the “the extent to which the copying work’s overriding purpose and character is to parody the original, or…the likelihood that the parody may serve as a market substitute for the original."
Here, only Leibovitz’s particular expression of Moore’s nude, female pregnant body is protectable. Specifically artistic elements such as the lighting, the skin tone and camera angle may receive protection. Her depiction of a nude, pregnant body posed in a certain way is not entitled to protection because such posing long ago entered the public domain. Paramount clearly took more of the original than necessary to conjure it up but this is not dispositive as to third factor analysis. Thus, even though the copying was extensive, this factor weighs in favor of fair use because the overriding purpose of the copy was to parody and it is unlikely that the parody will serve as a substitute for the original,
Factor 4: The effect of the alleged infringing use on the potential market for or value of the original:
The Supreme Court noted that a parody will likely not affect the market for the original because the parody and original usually serve different market functions. Here, Leibovitz concedes that the advertisement did not interfere with a market for her photo or for derivative works based upon her photo. She argues that the market harm is deprivation of a licensing fee for use of her work in the ad. However, Leibovitz is not entitled to licensing revenue for a work that qualifies as a fair use. Thus, the fourth factor favors Paramount
Aggregate Assessment of Factors:
In light of the fact that the Supreme Court significantly depreciated the importance of the second factor in the context of parodies commenting on original works, the balance here weighs in favor of defendant. Summary judgment in favor of Paramount is affirmed.
POLICY: Ultimately the fair use doctrine balances the interests of original authors/creators and subsequent authors by lessening the possibility that their 1st Amendment expressive rights will be curtailed.
REMAINING QUESTION: Will the third factor ever weigh in favor of the original author in the parody context because such emphasis is placed on whether the copying of additional, protected amounts of the original work relate directly to the parodic purpose?