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Leibovits vs. Paramount Pictures

United States Court of Appeals, Second Circuit.

Annie LEIBOVITZ, Plaintiff-Appellant,
Docket No. 97-7063.
Decided: February 19, 1998

FAIR USE Whether or not the fair use defense to copyright infringement is available in the
context of an advertisement claimed to be a parody of a copyrighted photograph.

o The district court for the Southern District of New York granted summary judgement
for defendant-appellee Paramount Pictures Corp ruling that it was entitled to the
defense of fair use.
o 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.
o 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. Said photograph featured a nude, pregnant woman
with the face of the films star, Leslie Nielsen. To ensure resemblance to the Leibovitz
photo, Paramount ensured meticulous details be replicated including the ring on
Moores finger, the pose and hand placement, and the skin tone and shape of the
body. Moores serious look was replaced with Nielsens mischievous smirk.
o In early 1994 the campaign ran in a magazine and Leibovitz brought suit over the
Petitioners Arguments
o Leibovits argues that she, not the defendant, was entitled to receive little protection
under fair use defense because of the commercial nature of Paramounts
Respondents Argument
o 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.

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.


o The Supreme Court in Campbell confirmed that the fair use doctrine applies to

o The fair use doctrine permits other people to use copyrighted material without the
owner's consent in a reasonable manner for certain purposes.
o 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: 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.
Factor 2: 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.
Factor 3: 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 works
overriding purpose and character is to parody the original, orthe likelihood
that the parody may serve as a market substitute for the original."
Factor 4: 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.

Conclusion: 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.