Leibovitz v. Paramount Pictures Corp. is an influential 1998
Second CircuitThe United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
fair useFair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another...
case.
Annie LeibovitzAnna-Lou "Annie" Leibovitz is an American portrait photographer whose style is marked by a close collaboration between the photographer and the subject.-Early life and education:...
is a professional portrait
photographerA photographer is a person who takes photographs using a camera. A professional photographer uses photography to make a living whilst an amateur photographer does not earn a living and typically takes photographs for pleasure and to record an event, place or person for future enjoyment.A...
who had published a photograph of celebrity
Demi MooreDemi Guynes Kutcher, professionally known as Demi Moore is an American actress.After minor roles in film, and a role in the television drama series, General Hospital, Moore established her career in films such as St...
while seven months pregnant. The photograph, published on the front cover of
Vanity FairVanity Fair is an American Hollywood magazine of pop culture, fashion, and politics published by Condé Nast Publications. The present Vanity Fair has been published since 1981 and there have been editions for four European countries as well as the U.S. edition...
in August, 1991 with the title
More Demi MooreMore Demi Moore or the August 1991 Vanity Fair cover was a controversial handbra nude photograph of the then seven-months pregnant Demi Moore taken by Annie Leibovitz for the August 1991 cover of Vanity Fair to accompany a cover story about Moore...
, had achieved significant fame and notoriety on publication, and
Paramount PicturesParamount Pictures Corporation is a Worldwide American film production and distribution company, located at 5555 Melrose Avenue in Hollywood, California. Founded in 1912 and currently owned by media conglomerate Viacom, it is the world's oldest existing American film studio; it is also the last...
chose to
parodyA parody , in contemporary usage, is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
it in 1993 as part of a promotional campaign for its new film
Naked Gun 33⅓: The Final Insult.
Leibovitz v. Paramount Pictures Corp. is an influential 1998
Second CircuitThe United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
fair useFair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another...
case.
Case background
Annie LeibovitzAnna-Lou "Annie" Leibovitz is an American portrait photographer whose style is marked by a close collaboration between the photographer and the subject.-Early life and education:...
is a professional portrait
photographerA photographer is a person who takes photographs using a camera. A professional photographer uses photography to make a living whilst an amateur photographer does not earn a living and typically takes photographs for pleasure and to record an event, place or person for future enjoyment.A...
who had published a photograph of celebrity
Demi MooreDemi Guynes Kutcher, professionally known as Demi Moore is an American actress.After minor roles in film, and a role in the television drama series, General Hospital, Moore established her career in films such as St...
while seven months pregnant. The photograph, published on the front cover of
Vanity FairVanity Fair is an American Hollywood magazine of pop culture, fashion, and politics published by Condé Nast Publications. The present Vanity Fair has been published since 1981 and there have been editions for four European countries as well as the U.S. edition...
in August, 1991 with the title
More Demi MooreMore Demi Moore or the August 1991 Vanity Fair cover was a controversial handbra nude photograph of the then seven-months pregnant Demi Moore taken by Annie Leibovitz for the August 1991 cover of Vanity Fair to accompany a cover story about Moore...
, had achieved significant fame and notoriety on publication, and
Paramount PicturesParamount Pictures Corporation is a Worldwide American film production and distribution company, located at 5555 Melrose Avenue in Hollywood, California. Founded in 1912 and currently owned by media conglomerate Viacom, it is the world's oldest existing American film studio; it is also the last...
chose to
parodyA parody , in contemporary usage, is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
it in 1993 as part of a promotional campaign for its new film
Naked Gun 33⅓: The Final Insult. Paramount's commissioned photograph featured
Leslie NielsenLeslie William Nielsen, OC is a Canadian comedian and actor. Although Nielsen's acting career crosses a variety of genres in both television and films, he has achieved his greatest film success in comedies, including Airplane! and The Naked Gun series of films...
's face superimposed over the body of a pregnant woman, shot and digitally manipulated in such a way as to closely resemble Leibovitz' photograph of Demi Moore. Paramount ran the ad nationally, and Leibovitz sued for
copyrightCopyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation, after which time the work is said to enter the public domain...
infringement.
Proceedings and analysis
At trial, the Southern District of New York found the use to be
fairFair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another...
.
On appeal, the
United States Court of Appeals for the Second CircuitThe United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
affirmed.
Examining the four fair use factors, the court found that although Paramount's photographer drew heavily from Leibovitz' composition, in light of Paramount's
parodicA parody , in contemporary usage, is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
purpose and absence of market harm the use of the photograph was a fair use. While Leibovitz had argued that she was entitled to licensing revenue from the photograph, the court found that parodies were likely to generate little or no licensing revenue.
The Court took particular note that, while the
composition and posing of the models is the same, other elements are different. For instance, the lighting between the two photos is different: in the Paramount photo the lighting is more garish, including greater contrasts and brighter colors while in the Leibovitz photo the lighting is warmer and more subdued. In the Paramount photo the ring on the model's right-hand is, again, garish, and much larger than the ring Demi Moore is wearing on her right hand. These artistic choices on the part of Paramount's designers heighten the parodic effect. The expressions on the models' faces are also significant: Moore's face has a serious expression, hearkening back to the classical "Venus Pudica" pose, while Nielsen's face bears a smirk, disrupting serious appreciation. The ultimate contrast is that of a healthy pregnant woman, compared with an older man's face superimposed onto a woman's body.
Further reading
- full text from FindLaw
- Miatta Tenneh Dabo, "Recent Development: Leibovitz v. Paramount Pictures Corp.: Fair Use Doctrine: When Is Copyright Infringement a Parody?", Univ. of Baltimore Intellectual Property Law Journal v.7, p.155 (Spring 1999).
- Matthew A. Eisenstein, "An Economic Analysis of the Fair Use Defense in Leibovitz v. Paramount Pictures Corporation", University of Pennsylvania Law Review, v.148, no. 3 (Jan. 2000), pp. 889-930.
- Jonathan M. Fox, "The Fair Use Commercial Parody Defense and How to Improve It," Idea v.46 p. 619 (2006).
- Jeremy Kudon, "Note: Form Over Function: Expanding the Transformative Use Test for Fair Use," Boston University Law Review v.80, p. 579 (April 2000).
- Michael Lynch, "A Theory of Pure Buffoonery: Fair Use and Humor," Dayton Law Review v. 24, p.1 (Fall 1998).