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''Leibovitz v. Paramount Pictures Corp.'', 137 F.3d 109 (2d Cir. 1998), is an influential
Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory covers the states of Connecticut, New York, and Vermont, and it has appellate jurisdic ...
fair use Fair use is a Legal doctrine, doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to bal ...
case.


Case background

Annie Leibovitz Anna-Lou Leibovitz ( ; born October 2, 1949) is an American Portrait photography, portrait photographer best known for her portraits, particularly of celebrities, which often feature subjects in intimate settings and poses. Leibovitz's Polaroid ...
is a professional portrait
photographer A photographer (the Greek φῶς (''phos''), meaning "light", and γραφή (''graphê''), meaning "drawing, writing", together meaning "drawing with light") is a person who uses a camera to make photographs. Duties and types of photograp ...
who had published a photograph of celebrity
Demi Moore Demi Gene Moore ( ; née Guynes; born November 11, 1962) is an American actress. After rising to prominence in the early 1980s, she became the world's highest-paid actress by 1995. List of awards and nominations received by Demi Moore, Her acc ...
while Moore was seven months pregnant. The photograph, published on the front cover of '' Vanity Fair'' in August, 1991 with the title '' More Demi Moore'', had achieved significant fame and notoriety on publication, and
Paramount Pictures Paramount Pictures Corporation, commonly known as Paramount Pictures or simply Paramount, is an American film production company, production and Distribution (marketing), distribution company and the flagship namesake subsidiary of Paramount ...
chose to
parody A parody is a creative work designed to imitate, comment on, and/or mock its subject by means of satire, satirical or irony, ironic imitation. Often its subject is an Originality, original work or some aspect of it (theme/content, author, style, e ...
it in 1993 as part of a promotional campaign for their new film at the time, '' Naked Gun 33 1/3: The Final Insult''. Paramount's commissioned photograph featured
Leslie Nielsen Leslie William Nielsen (February 11, 1926November 28, 2010) was a Canadian actor and comedian. With a career spanning 60 years, he appeared in more than 100 films and 150 television programs, portraying more than 220 characters. He made his a ...
'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
copyright A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, ...
infringement.


Proceedings and analysis

At trial, the
Southern District of New York The Southern District of New York is a federal judicial district that encompasses the counties of New York (Manhattan), Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan. Federal offices or agencies operating in the distri ...
found the use to be
fair A fair (archaic: faire or fayre) is a gathering of people for a variety of entertainment or commercial activities. Fairs are typically temporary with scheduled times lasting from an afternoon to several weeks. Fairs showcase a wide range of go ...
. On appeal, the
United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory covers the states of Connecticut, New York (state), New York, and Vermont, and it has ap ...
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 parodic 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 Composition or Compositions may refer to: Arts and literature *Composition (dance), practice and teaching of choreography * Composition (language), in literature and rhetoric, producing a work in spoken tradition and written discourse, to include ...
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.


See also

* '' Buchwald v. Paramount'' * '' Paramount Communications, Inc. v. QVC Network, Inc.'' * ''
United States v. Paramount Pictures, Inc. ''United States v. Paramount Pictures, Inc.'', 334 U.S. 131 (1948) (also known as the Hollywood Antitrust Case of 1948, the Paramount Case, or the Paramount Decision), was a landmark United States Supreme Court antitrust case that decided the f ...
''


Further reading

* 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).


External links

* {{The Naked Gun United States copyright case law United States Court of Appeals for the Second Circuit cases 1998 in United States case law Fair use case law The Naked Gun Paramount Pictures Vanity Fair (magazine)