U.S 2nd Circuit Court of Appeals - Thesis | ART 318C, Papers of Art

Download U.S 2nd Circuit Court of Appeals - Thesis | ART 318C and more Papers Art in PDF only on Docsity! FindLaw: Cases and Codes http://caselaw.findlaw. com U.S. 2nd Circuit Court of Appeals LEIBOVITZ v PARAMOUNT PICTURES UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 1997 Argued: October 20, 1997 Decided: February 19, 1998 Docket No. 97-7063 - - - - - - - - - - - - - - - - - ANNIE LEIBOVITZ, Plaintiff-Appellant, v. PARAMOUNT PICTURES CORPORATION, Defendant-Appellee. - - - - - - - - - - - - - - - - - Before: NEWMAN, CALABRESI, and CUDAHY, * Circuit Judges . Appeal from the December 20, 1996, judgment of the United States District Court for the Southern District of New York (Loretta A. Preska, Judge) dismissing, on motion for summary judgment, plaintiff-appellant's suit for copyright infringement. Affirmed. Tennyson Schad, Norwick & Schad, New York, http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=2nd/977063.html (1 of 11) [3/30/2008 7:39:30 PM] FindLaw: Cases and Codes N.Y., for plaintiff-appellant. Jonathan Zavin, New York, N.Y. (Jacques M. Rimokh, Richards & O'Neil, New York, N.Y., on the brief), for defendant- appellee. 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 (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." http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=2nd/977063.html (2 of 11) [3/30/2008 7:39:30 PM] FindLaw: Cases and Codes at 580 (emphasis added). The comment must have some "critical bearing on the substance or style of the original composition." Id. The Court cautioned that the quality of the parody is not to be evaluated. See id. at 582. The relevant inquiry is "whether a parodic character may reasonably be perceived." Id. A permissible aspect of the inquiry, the Court noted, is "whether the parodic element is slight or great, and the copying small or extensive in relation to the parodic element, for a work with slight parodic element and extensive copying will be more likely to merely `supersede the objects' of the original." Id. at 582 n.16. Campbell deemed an adequately parodic element present in 2 Live Crew's parody of the song "Oh, Pretty Woman" because the contrast between the copying work and the original "can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies." Id. at 583. With respect to the second factor, the nature of the copyrighted work, the Court observed that the fact that the original is a creative work "within the core of the copyright's protective purposes . . . is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works." Id . at 586 (citations omitted). Turning to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the Court acknowledged that "[p]arody presents a difficult case," id. at 588, because "[p]arody's humor, or in any http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=2nd/977063.html (5 of 11) [3/30/2008 7:39:30 PM] FindLaw: Cases and Codes event its comment, necessarily springs from recognizable allusion to its object through distorted imitation," id. That observation led the Court to make three significant points concerning third-factor analysis. First, consideration must be given not only to the quantity of the materials taken but also to "their quality and importance" to the original work. Id. at 587. Second, "the parody must be able to `conjure up' at least enough of the original to make the object of its critical wit recognizable." Id. at 588 (emphasis added). In thus departing from prior decisions indicating that a parody entitled to the fair use defense could take no more than an amount sufficient to "conjure up" the original, see Walt Disney Productions v. Air Pirates , 581 F.2d 751, 757-58 (9th Cir. 1978); Columbia Pictures Corp. v. National Broadcasting Co. , 137 F. Supp. 348, 350 (S.D. Cal. 1955); see also Berlin v. E.C. Productions, Inc. , 329 F.2d 541, 545 (2d Cir. 1964) (no infringement where parodist copied no more than necessary to "conjure up" original), Campbell explicitly cited our use of the "at least" formulation in Elsmere Music , 623 F.2d at 253 n.1. See Campbell , 510 U.S. at 588 . Third, the Court explained that "[o] nce enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the [copying work's] overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original." Id. With respect to the fourth factor, effect upon the potential market for or value of the original, the Court explicitly rejected any presumption of market harm to the original from copying "involving something beyond mere duplication for commercial purposes." Id. at 591. On the contrary, the Court observed, "as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor . . . because the parody and the original usually serve different market functions." Id. (citations omitted). The Court also noted that harm to the original resulting from the "lethal" nature of the parody is not "a harm cognizable under the Copyright Act." Id. at 591-92. Finally, the Court recognized that even though a parody might not inflict cognizable market harm by its adverse comment on the original, such harm might arise if the parody serves as a market substitute for a derivative work based on the original. See id. 592-94. IV. Application of Campbell to Paramount's Advertisement A. First factor . Applying Campbell to the first-factor analysis, we inquire whether Paramount's advertisement "may reasonably be perceived," id. at 582, as a new work that "at least in part, comments on" Leibovitz's photograph, id. at 580. Plainly, the ad adds something new and qualifies as a "transformative" work. Whether it "comments" on the original is a somewhat closer question. Because the smirking face of Nielsen contrasts so strikingly with the serious expression on the face of Moore, the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original. The contrast achieves the effect of ridicule that the Court recognized in Campbell would serve as a sufficient "comment" to tip the first factor in a parodist's favor. See id. at 583 ("It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.") (footnote omitted). In saying this, however, we have some concern about the ease with which every purported parodist could win on the first factor simply by pointing out some feature that contrasts with the original. Being different from an original does not inevitably "comment" on the original. Nevertheless, the ad is not merely different; it differs in a way that may reasonably be perceived as commenting, through ridicule, on what a viewer might reasonably think is the undue self- importance conveyed by the subject of the Leibovitz photograph. A photographer posing a well known actress in a manner that calls to mind a well known painting must expect, or at least tolerate, a parodist's deflating ridicule. 3 Apart from ridiculing pretentiousness, the ad might also be reasonably perceived as interpreting the Leibovitz photograph to extol the beauty of the pregnant female body, 4 and, rather unchivalrously, to express disagreement with this message. The District Court thought such a comment was reasonably to be perceived from the contrast between "a serious portrayal of a beautiful woman taking great pride in the majesty of her pregnant body . . . [and] a ridiculous image of a smirking, foolish-looking pregnant man." Leibovitz , 948 F. Supp. at 1222. http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=2nd/977063.html (6 of 11) [3/30/2008 7:39:30 PM] FindLaw: Cases and Codes The fact that the ad makes a parodic comment on the original does not end the first-factor analysis, however, because the ad was created and displayed to promote a commercial product, the film. This advertising use lessens the "indulgence" to which the parodic ad is entitled, see Campbell , 510 U.S. at 585 . Paramount seeks to mitigate the negative force of the advertising purpose by arguing that the advertisement should be viewed as an extension of the film, rather than merely an advertisement for it. Paramount emphasizes the general jocular nature of the film, as well as the film's specific humorous treatment of pregnancy and parenthood. Though the advertising purpose of a parodic copying should not be entirely discounted simply because the ad promotes a humorous work, there is some slight force to Paramount's argument. For those who see the movie, the parodic comment of the ad might reasonably be perceived as reenforced by the kidding comments of the movie concerning pregnancy and parenthood. On balance, the strong parodic nature of the ad tips the first factor significantly toward fair use, even after making some discount for the fact that it promotes a commercial product. "[L]ess indulgence," id. at 585, does not mean no indulgence at all. This is not a case like Steinberg v. Columbia Pictures Industries, Inc. , 663 F. Supp. 706 (S.D.N.Y. 1987), where a copyrighted drawing was appropriated solely to advertise a movie, without any pretense of making a comment upon the original, see id. at 715. B. Second Factor . Though Paramount concedes the obvious point that Leibovitz's photograph exhibited significant creative expression, Campbell instructs that the creative nature of an original will normally not provide much help in determining whether a parody of the original is fair use. Campbell , 510 U.S. at 586 . The second factor therefore favors Leibovitz, but the weight attributed to it in this case is slight. C. Third Factor . In assessing the amount and substantiality of the portion used, we must focus only on the protected elements of the original. Leibovitz is entitled to no protection for the appearance in her photograph of the body of a nude, pregnant female. Only the photographer's particular expression of such a body is entitled to protection. Thus, to whatever extent Leibovitz is contending that the ad takes the "heart" of the original, see Harper & Row , 471 U.S. at 564 - 66, she must limit her contention to the particular way the body of Moore is portrayed, rather than the fact that the ad copies the appearance of a nude, pregnant body. Moreover, in the context of parodies, "the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim," Campbell , 510 U.S. at 588 . Thus, the third- factor inquiry in the parody context concerns "what else the parodist did besides go to the heart of the original." Id. at 589 (emphasis added). Paramount went to great lengths to have its ad copy protectable aspects of the Leibovitz photograph. Even though the basic pose of a nude, pregnant body and the position of the hands, if ever protectable, were placed into the public domain by painters and sculptors long before Botticelli, 5 Leibovitz is entitled to protection for such artistic elements as the particular lighting, the resulting skin tone of the subject, and the camera angle that she selected. See Rogers , 960 F.2d at 307 ("Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved."); Gentieu v. John Muller & Co. , 712 F. Supp. 740, 742 (W.D. Mo. 1989) (protectable elements include "photographer's selection of background, lights, shading, positioning and timing"). The copying of these elements, carried out to an extreme degree by the technique of digital computer enhancement, took more of the Leibovitz photograph than was minimally necessary to conjure it up, but Campbell instructs that a parodist's copying of more of an original than is necessary to conjure it up will not necessarily tip the third factor against fair use. Campbell , 510 U.S. at 588 . On the contrary, "[o]nce enough has been taken to assure identification," id. , as plainly occurred here, the reasonableness of taking additional aspects of the original depends on the extent to which the "overriding purpose and character" of the copy "is to parody the original," id. , and "the likelihood that the parody may serve as a market substitute for the original," id. That approach leaves the third factor with little, if any, weight against http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=2nd/977063.html (7 of 11) [3/30/2008 7:39:30 PM] FindLaw: Cases and Codes the copyright owner would prohibit the use in order to qualify the copy as fair use under Campbell . -------------- [4] Although Leibovitz declined at her deposition to identify a single message that her photograph conveyed, she acknowledged that among them was Moore's "self-confidence or feeling of pride in being beautiful and pregnant." Joint Appendix at 30. -------------- [5] See note 1, supra . A very early example of the sculpted figure of a nude, pregnant female is "`Venus' of Willendorf" in the Naturhistoriches Museum, Vienna, dated circa 25,000-20,000 B.C. See Anthony F. Janson, History of Art 52 (5th ed. 1995). A contemporary example of the profile of a sculpted nude, pregnant female with her hands supporting her distended stomach is Isabel McIlvain's 1981 "Venus" in the Robert Schoelkopf Gallery, New York City. See Barry Nemett, images objects and ideas -- Viewing the Visual Arts 8 (1992). -------------- [6] In Campbell , the fact that the song parody of "Oh, Pretty Woman" was in the genre of rap music precluded a grant of summary judgment for the defendant, in the absence of any evidence of the likely effect of the parody on the market for a nonparody rap version of the song. See Campbell , 510 U.S. at 593 -94. In this case, Leibovitz has not identified any market for a derivative work that might be harmed by the Paramount ad. In these circumstances, the defendant had no obligation to present evidence showing lack of harm in a market for derivative works. -------------- [7] Unlike her arguments to this Court, Leibovitz seemed preoccupied in her deposition testimony with the effect that the parody could have on her "special relationships" with the celebrities whom she has made a living photographing. See Joint Appendix at 28, 32-33. But like market harm caused by a negative book review, see Campbell , 510 U.S. at 591 -92; Fisher v. Dees , 794 F.2d 432, 437-38 (9th Cir. 1986), any lost revenue Leibovitz might experience due to celebrities' reluctance to be photographed for fear of enduring parodies is not cognizable http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=2nd/977063.html (10 of 11) [3/30/2008 7:39:30 PM] FindLaw: Cases and Codes harm under the fourth fair use factor. The possibility of criticism or comment -- whether or not parodic -- is a risk artists and their subjects must accept. - 1 - Company | Privacy Policy | Disclaimer Copyright © 1994-2008 FindLaw http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=2nd/977063.html (11 of 11) [3/30/2008 7:39:30 PM]