Leibovitz v. Paramount Pictures Corp., Docket No. 97-7063

• Decision Date: 19 February 1998
• Docket Number: Docket No. 97-7063
• Citation: 137 F.3d 109
• Parties: 1998 Copr.L.Dec. P 27,741, 45 U.S.P.Q.2d 1834 Annie LEIBOVITZ, Plaintiff-Appellant, v. PARAMOUNT PICTURES CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 109

137 F.3d 109

1998 Copr.L.Dec. P 27,741, 45 U.S.P.Q.2d 1834

Annie LEIBOVITZ, Plaintiff-Appellant, v. PARAMOUNT PICTURES CORPORATION, Defendant-Appellee.

Docket No. 97-7063.

United States Court of Appeals, Second Circuit.

Argued Oct. 20, 1997.

Decided Feb. 19, 1998.

Tennyson Schad, Norwick & Schad, New York City, for plaintiff-appellant.

Jonathan Zavin, New York City (Jacques M. Rimokh, Richards & O'Neil, New York City, on the brief), for defendant-appellee.

Before: NEWMAN, CALABRESI, and CUDAHY, ^* Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal concerns the fair use defense to copyright infringement in the context of an advertisement claimed to be a parody of a copyrighted photograph. Annie Leibovitz appeals from the December 20, 1996, judgment of the District Court for the Southern District of New York (Loretta A. Preska, Judge), granting summary judgment for defendant-appellee Paramount Pictures Corp. ("Paramount"). Leibovitz v. Paramount Pictures Corp., 948 F.Supp. 1214 (S.D.N.Y.1996). Leibovitz argues that she, not the defendant, was entitled to summary judgment, principally on the ground that the defendant's use was commercial and therefore should receive little protection under the fair use defense. While we agree that the commercial nature of Paramount's advertisement weighs against it in the fair use balance, we nonetheless conclude that this advertisement qualifies as a parody entitled to the fair use defense under the analysis set forth by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Accordingly, we affirm.

Background

Leibovitz is a well known and widely published photographer. Among her most recognizable works is the photograph alleged to be infringed in this case, the photograph of the actress Demi Moore that appeared on the cover of the August 1991 issue of Vanity Fair magazine. Moore, who was pregnant at the time, was depicted nude, in profile, with her right hand and arm covering her breasts and her left hand supporting her distended stomach--a well known pose evocative of Botticelli's Birth of Venus. ¹ A ring adorns the middle finger of Moore's right hand. Moore's facial expression is serious, without a trace of a smile. The appearance of the photograph attracted widespread attention, and that issue became one of Vanity Fair 's best selling issues of all time.

In August 1993, Paramount solicited advertising ideas from an outside advertising agency, Dazu, Inc. ("Dazu"), in connection with its forthcoming release of the motion picture Naked Gun 33 1/3: The Final Insult. This film was the third in a series of slapstick comedies starring the actor Leslie Nielsen as the maladroit detective Frank Drebin. One minor theme of the film was a controversy between Drebin and his wife as to whether to conceive a child and Drebin's subsequent treatment at a fertility clinic. There is no evidence, however, that Paramount informed Dazu of this theme, or that Paramount planned the advertising campaign to relate to any aspect of the movie's plot.

Paramount asked Dazu to come up with ideas for a "teaser" advertising campaign, to be launched in advance of the March 1994 release date of the film. In response, Dazu suggested that the teasers superimpose Nielsen's face on readily recognizable photographs of famous women. Dazu forwarded to Paramount copies of four composite photographs, each superimposing Nielsen's face in place of what had been the faces of the actresses Sharon Stone, Madonna, Jane Fonda, and Demi Moore. Each proposed teaser included a slogan referring to the March release date of the film. The composite photograph depicting Nielsen as the pregnant Moore slyly proclaimed, "DUE THIS MARCH."

Paramount approved the concept, and selected the composite of Moore's body and Nielsen's face. However, rather than mechanically copying the portion of the original Leibovitz photograph depicting Moore's body, Paramount commissioned another photograph to be taken of a nude, pregnant woman, similarly posed. Great effort was made to ensure that the photograph resembled in meticulous detail the one taken by Leibovitz. The model was carefully posed so that her posture and hands precisely matched those of Moore in the Leibovitz photograph. A large ring was placed on the same finger as the one appearing on Moore's hand. ² The photograph was digitally enhanced by a computer to make the skin tone and shape of the body more closely match those of Moore in the Leibovitz photograph. The final step was to superimpose on the model's body a photograph of Nielsen's face, with his jaw and eyes positioned roughly at the same angle as Moore's, but with her serious look replaced by Nielsen's mischievous smirk.

Paramount ran its teaser in a magazine ad campaign in early 1994. Leibovitz protested the use, and ultimately brought this action in District Court. On cross-motions for summary judgment, the District Court granted Paramount's motion, ruling that the undisputed facts demonstrated that Paramount was entitled to the defense of fair use.

Discussion

Leibovitz contends that the District Court erred in granting Paramount's motion for summary judgment and should have granted partial summary judgment, as to liability, in her favor. Both parties agree that no factual issues remain in dispute; they disagree only on the availability of the fair use defense to what appears to be an acknowledged prima facie case of copyright infringement. Paramount argues that its work is a parody, and should be evaluated under the standards set forth in Campbell for determining whether parodic uses are "fair." Leibovitz responds that even if the advertisement is appropriately considered a parody of her photograph, it should fail the fair use test because it was employed for commercial purposes and because it replicated more of her original than was necessary.

I. Fair Use and Parody

The fair use doctrine "permits other people to use copyrighted material without the owner's consent in a reasonable manner for certain purposes." Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.1992). Recognized at common law, see e.g., Folsom v. Marsh, 9 F. Cas. 342 (C.C.D.Mass.1841) (Story, J.), the doctrine is now codified in section 107 of the 1976 Copyright Act, 17 U.S.C. § 107 (1994). Section 107 provides an illustrative list of the purposes for which the doctrine may be invoked, including "comment" and "criticism," id., as well as a now familiar list of factors that courts should consider in determining whether a use is "fair." These 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. See id.

Although the statute does not specifically list "parodies" among the categories of potentially "fair" uses, we have long afforded such works some measure of protection under this doctrine, see, e.g., MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir.1981); Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252 (2d Cir.1980); Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir.1964), and the Supreme Court authoritatively confirmed the applicability of the fair use doctrine to parodies in Campbell, 510 U.S. at 579, 114 S.Ct. at 1171.

II. Campbell 's Clarification of the Fair Use Defense

Campbell clarified the fair use defense in general and its particular application to parodies. As a general matter, the Court emphasized that the fair use determination "calls for case-by-case analysis," id. at 577, 114 S.Ct. at 1170, and "is not to be simplified with bright-line rules," id. The Court made clear that all four of the statutory factors "are to be explored, and the results weighed together." Id. at 578, 114 S.Ct. at 1171.

Campbell also significantly illuminated the proper application of the first fair use factor, the purpose and character of the use. The focus of this inquiry, the Court explained, should be on whether the copying work "merely 'supersede[s] the objects' of the original ..., or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message," id. at 579, 114 S.Ct. at 1171 (quoting Folsom, 9 F. Cas. at 348) (citations omitted; brackets in original). The Court considered this standard appropriately captured by Judge Leval's helpful adjective "transformative." Id. (quoting Pierre N. Leval Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1111 (1990)).

In focusing the first factor inquiry upon the "transformative" nature of the use, the Court abandoned the statement in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984), that "every commercial use of copyrighted material is presumptively ... unfair," id. at 451, 104 S.Ct. at 793. See Campbell, 510 U.S. at 583-85, 114 S.Ct. at 1173-74. Instead, the Court recalled its statement in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985), that commercial use is only " 'a separate factor that tends to weigh against a finding of fair use.' " Campbell, 510 U.S. at 585, 114 S.Ct. at 1174 (quoting Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231). The Court noted, however, that "the force of that tendency will vary with the context," id., and that the use of a copyrighted work to advertise a product is a context entitling the copying work to "less indulgence" than if it is marketed for its own worth, see id.

The Court's emphasis on an aggregate weighing of all four fair use factors represented a modification of the Court's earlier view that the fourth factor, effect on the potential market for, or value of, the original, was "the single most important element of fair use." Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233, a characterization conspicuously absent from the Campbell opinion. See American...