Photographer Annie Leibovitz owned copyright in her photograph of Demi Moore, pregnant and naked, which appeared on the cover of the August 1991 Vanity Fair. In 1993, Paramount promoted the release of Naked Gun 33 1/3 by superimposing the face of the movie’s male star on a pregnant female image modeled after Leibovitz’s photograph. Here Leibovitz sued Paramount for copyright infringement.
The court held the advertisement was a parody. As parody is a fair use defense to copyright infringement, the use was deemed permissible. The court found three elements cutting against a finding of fair use: the advertisement promoted a commercial product, the original work was creative, and the copying was extensive. Yet the court concluded these problems were remedied by the fact that the advertisement transformed and commented upon the original work. The court believed the ad could reasonably be perceived to comment upon the seriousness, or even the pretentiousness, of the original photograph. Also, the new work did not interfere with any potential market for the original photograph. The court balanced these five factors to conclude the advertisement was a fair use.
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