BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, April 24, 1998.)
When Paramount Pictures advertised its comedy motion picture “Naked Gun 33 1/3: The Final Insult” (the “Picture”) by superimposing a photograph of Leslie Nielsen’s head on the image of a pregnant woman, a well-known photographer filed a claim for copyright infringement.1 The decision by a federal appeals court in that action explores the difficult issue of whether the advertisement qualifies as a parody entitled to the fair use defense.
The photographic work which allegedly was infringed appeared on the cover of the August 1991 issue of Vanity Fair Magazine. It depicts the actress Demi Moore, pregnant at the time, nude, in profile, in a pose evocative of Botticelli’s “Birth of Venus.” (In a footnote, the Court discusses the history of paintings embodying a pose similar to the one adopted by Moore in the photograph, known in classical art as “Venus Pudica”). The Vanity Fair publication containing the photograph became one of its best selling issues of all time.
In August, 1993 Paramount solicited ideas from an outside agency for use in an advertising campaign to be launched in advance of the March 1994 release of the Picture. The composite photograph depicting Nielsen as the pregnant Moore proclaimed “DUE THIS MARCH.”
In creating the advertisement, Paramount commissioned its own photograph to be taken of a nude, pregnant woman, posed similarly to Moore’s pose. The model was carefully positioned so that her posture and hands precisely matched those of Moore in the photograph. It was digitally enhanced by a computer to make the skin tone and shape of the body more closely match those of Moore in the 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.
On cross-motions for summary judgment, the district court granted Paramount’s motion, ruling that it was entitled to the defense of fair use. With no factual issues remaining in dispute, the disagreement of the parties centers only on the availability of the fair use defense to what appears to be an acknowledged prima facie case of copyright infringement. Paramount’s position is that the work is a parody and should be evaluated under the standards determining whether parodic uses are “fair” as set forth by the Supreme Court in Campbell v. Acuff-Rose Music, Inc.2 (“Campbell”). Plaintiff contends that even if the advertisement is 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.
Section 107 of the Copyright Act lists four factors that courts should consider in determining whether a use is “fair” : (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.
Although the statute does not specifically list parodies among the categories of the potentially fair uses, the decision notes that for a long time works have been afforded some measure of protection under this doctrine and the Supreme Court authoritatively confirmed the applicability of the fair use doctrine to parodies in the Campbell case.
Campbell emphasizes that the fair use determination calls for a case-by-case analysis and is not to be simplified with bright line rules. It makes clear that all four of the statutory factors are to be explored, and the results weighed together. This emphasis on the weighing of all four factors represented a modification of the earlier view of the Supreme Court that the fourth factor, effect on the potential market for, or value of, the original, was the single most important element of fair use.
With respect to the first fair use factor, the purpose and character of the use, the Campbell decision states that the focus should be on whether the copying work merely supersedes 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. The Court indicates that this standard has been captured the helpful adjective “transformative.” 3
Relating the first factor to parodies, the Supreme Court states that “The heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” The comment must have some “critical bearing on the substance or style of the original composition.” The relevant inquiry is “whether a parodic character may reasonably be perceived.”
With respect to the second factor, Campbell indicates that because parodies almost invariably copy publicly known expressive works, the fact that the original is a creative work within the core of the copyright protective purposes is not likely to be of much help in separating fair use works from infringing ones.
The third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, presents a difficult case, because parody is humor, or, in any event, its comment necessarily springs from recognizable allusion to its object through distorted imitation. The Campbell decision makes three significant points concerning third factor analysis: (1) consideration must be given not only to the quantity of materials taken, but to their quality and importance to the original work, (2) the parody must be able to conjure up at least enough of the original to make the object of its critical work recognizable, and (3) once enough has been taken to assure identification, how much more is reasonable will depend 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.
Regarding the effect upon the potential market or value of the original, Campbell explicitly rejects any presumption of market harm to the original from copying involving something beyond mere duplication for commercial purposes.
The Court next applies the standards in the Campbell decision to Paramount’s advertisement. The inquiry in the first factor is whether that advertisement may be reasonably perceived as a new work that at least in part comments on plaintiff’s photograph. Clearly it adds something new and qualifies as a transformative work. Whether it “comments” on the original is a somewhat closer question, which the Court decides in defendant’s favor, primarily because the smirking face of Nielsen contrasts so strikingly with the serious expression on the face of Moore. The Court reasons that the advertisement may be perceived as commenting on the seriousness, even the pretentiousness, of the original, which achieves the effect of ridicule that the Supreme Court in Campbell recognized would serve as a sufficient comment to tip the first factor in the parodist’s favor.
Noting that being different from an original does not necessarily “comment” on the original, the decision states that in this instance, “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.” Further, the advertisement might reasonably be perceived as interpreting the original photograph to extol the beauty of the pregnant female’s body and “rather unchivalrously,” to express disagreement with this message.
The fact that the advertisement was created and displayed to promote a commercial product lessens the “indulgence” to which it is entitled. Paramount seeks to lessen the negative force of the advertising purpose by arguing that the advertisement should be viewed as an extension of the Picture, a position which the Court acknowledges has “some slight force.” On balance, the Court concludes that the strong parodic nature of the advertisement tips the first factor significantly towards fair use, even after making some discount for the fact that it promotes a commercial product.
With respect to the second factor, the creative nature of the original normally will not provide much help in determining whether a parody of the original is fair use. This factor favors plaintiff, but the weight attributed to it is slight.
In assessing the amount and substantiality of the portion used, focus is only on the protected elements of the original. Plaintiff is entitled to no protection for the appearance of the body of the nude, pregnant female. Only the photographer’s particular expression of such a body is entitled to protection. Thus, to the extent plaintiff contends that the advertisement takes the “heart” of the original, her contention must be limited to the way Moore’s body is portrayed rather than the fact that the advertisement copies the appearance of a nude, pregnant body. Accordingly, the third factor inquiry concerns what the parodist did besides going to the heart of the original.
Plaintiff is entitled to protection for such artistic elements as the particular lighting, the resulting skin tone of the subject and the camera angle she selected. The copying of these elements which was carried out to an extreme degree by the technique of digital computer enhancement took more of her photograph that was minimally necessary to conjure it up. However, Campbell indicates that the copying by a parodist of more of an original than is necessary to conjure it up will not necessarily tip the third factor against fair use. On the contrary, once enough has been taken to assure identification, 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 and the likelihood that the parody may serve as a market substitute for it. The opinion notes that such an approach leaves the third factor with little, if any, weight against fair use so long as the first and fourth factors favor the parodist.
The Court states that plaintiff all but concedes that the Paramount photograph did not interfere with any potential market for her work or for derivative works based on it. This being so, the fourth factor favors the defendant.
The decision concludes by noting that in some cases, the aggregate assessment necessary for an ultimate decision might be difficult if the relevant factors weigh heavily on opposite sides of the balance. However, in the instant case, the Court is satisfied that the balance markedly favors defendant and, accordingly, it affirms the judgment of the district court.
1 Leibovitz v. Paramount Pictures Corporation, 1998, U.S. App. Lexis 2693, U.S. Court of Appeals, 2nd Cir. (February 19, 1998).
2 510 U.S. 569, 114 S.Crt. 1164 (1994). This case is the subject of the author’s column which appeared in the New York Law Journal on April 22, 1994.
3 Pierre N. Leval, Toward a Fair Use Standard, 103 Harvard Law Review 1105, 1111(1990).