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LEIBOVITZ v. PARAMOUNT PICTURES CORP.

December 18, 1996

ANNIE LEIBOVITZ, Plaintiff, against PARAMOUNT PICTURES CORPORATION, Defendant.


The opinion of the court was delivered by: PRESKA

 LORETTA A. PRESKA, United States District Judge:

 This action examines the extent to which a parody that appears in the form of an advertisement can constitute a fair use of a copyrighted work. Plaintiff is a well-known photographer who shot a photograph of the actress Demi Moore that appeared on the August, 1991 cover of Vanity Fair. Ms. Moore was eight months pregnant and nude in the photo, the publication of which aroused a great deal of controversy. It is undisputed that plaintiff is the sole owner of the copyright in this photograph. In 1993, the defendant was developing advertising in connection with the release of its film, Naked Gun: The Final Insult 33 1/3. The defendant eventually selected a "teaser" ad which it contends was a parody of the Vanity Fair cover. In the advertisement, a model who was also eight months pregnant was photographed against a backdrop similar to that used in the Demi Moore photograph; the lighting and pose were also similar to the Moore photograph. Further, the photograph was subjected to some computer manipulation in order to duplicate the skin tone and body configuration that appeared in the Moore photo. On top of the second model's body, however, appeared a photograph of the face of Leslie Nielsen, the star of the Naked Gun series of films. In contrast to Ms. Moore's expression of fulfillment, serenity, and pride, Mr. Nielsen's face wore a guilty smirk. Underneath the photo ran the legend "Due This March."

 Plaintiff brought suit, charging that the advertisement infringed her copyright in the Moore photograph. Defendant conceded that plaintiff owns the copyright in the photograph and that its advertisement targeted the Moore photograph, but contended that the ad was a parody and a fair use of plaintiff's copyrighted work. The parties made cross-motions for summary judgment. For the reasons that follow, plaintiff's motion for summary judgment is denied, and defendant's motion for summary judgment is granted.

 BACKGROUND

 Plaintiff Annie Leibovitz is a professional photographer whose work has earned international acclaim. (Affidavit of Annie Leibovitz, sworn to on June 28, 1996, P 2). She serves as an independent contractor with Conde Nast, the publisher of Vanity Fair magazine. (Leibovitz Aff., P 2). In 1991, pursuant to her exclusive contract with Conde Nast, Ms. Leibovitz shot a series of photographs of actress Demi Moore. Ms. Moore was eight months pregnant at the time and posed in the nude for some of the photographs. (Leibovitz Aff., PP 6-8). One of the nude photographs was ultimately selected for publication as the August, 1991 cover of Vanity Fair. (Leibovitz Aff., P 7). The cover aroused a great deal of controversy and public commentary at the time of its publication. (Leibovitz Aff., P 8, Deposition of Annie Leibovitz, p. 25; Declaration of Nathan Grant, sworn to June 25, 1996, P 6). For a substantial period of time (until, in fact, its displacement by another Leibovitz cover), the August, 1991 issue was the best-selling single issue of Vanity Fair. (Deposition of Jeffrey D. Smith, p. 46). The August, 1991 issue of Vanity Fair was duly registered for copyright by Conde Nast in July, 1991 under Registration No. 3 109 469. (Leibovitz Aff., P 2). Plaintiff, as the photographer, is the undisputed owner of the copyright in the Moore photograph. (Leibovitz Aff., P 2).

 In August, 1993, defendant Paramount hired Dazu, Inc., an outside advertising agency, to develop a "teaser" campaign for the upcoming release of the film, Naked Gun 33 1/3: The Final Insult. (Grant Decl., P 3). A teaser campaign is a brief campaign designed to pique the public's interest in a forthcoming movie and give a hint of the plot. (Grant Decl., P 3). According to Paramount's Executive Vice President for Creative Advertising, the main theme of Naked Gun 33 1/3 centers around the protagonist's struggle with his new life as a retired police detective and pressure from his wife to start a family. In the midst of this crisis, the detective is called upon to prevent a mad bomber (and his mother) from blowing up the Academy Awards ceremony. (Declaration of Lucia Ludovico, sworn to on July 1, 1996, P 4). Paramount provided Dazu with a copy of the script and requested that Dazu develop teaser ads that would be in line with the no-holds-barred humor that characterized the Naked Gun series of films. (Ludovico Decl., P 5).

 In response to this request, the agency provided several options. Among its suggestions was a hybrid photograph featuring the smirking face of Leslie Nielsen, the actor featured in the Naked Gun films, engrafted onto Ms. Moore's pregnant, nude body from the Vanity Fair cover. (Ludovico Decl., P 6; Grant Decl. P 6). Paramount's executive Vice President for Creative Advertising stated that she believed that the Nielsen ad, which "lampooned the controversial and 'serious' Moore Photo, was perfectly in keeping with the Naked Gun brand of irreverent parodic humor." (Ludovico Decl., P 7). In addition, the proposed ad was linked to the themes of marriage and childbearing that were central to the movie's plot.

 Once Paramount had selected the Nielsen ad, Dazu sought out and hired another model, who was also eight months pregnant, to serve as a body double for Ms. Moore. (Grant Decl., P 10). Dazu posed the model in a manner similar to Ms. Moore's photograph, against a similar backdrop, with similar lighting. (Grant Decl., P 10). The photograph was also digitally modified to more faithfully replicate the body configuration and skin tone that appeared in the Vanity Fair cover. (Grant Decl., P 10; Deposition of Kevin Stapleton, pp. 16-17). Dazu and its contractors then superimposed the smirking, guilty face of Leslie Nielsen on the second model's body and added the words beneath the photograph, "Due This March." (Leibovitz Aff., Exh. C). Neither Dazu nor Paramount ever requested permission to use the Vanity Fair cover from Ms. Leibovitz or Conde Nast.

 The Nielsen ad ran in several magazines, including Vanity Fair, nationally in January and February, 1994. Nathan Grant received two industry awards for his work on the Nielsen ad. (Grant Decl., P 12). Publication of the ads ceased sometime around February, 1994. In March, 1994, counsel for Ms. Leibovitz informed Paramount that it viewed the Nielsen ad as an infringement of the Moore photograph. Paramount responded that the ad was a parody and therefore noninfringing, and that the ad was no longer in use. In December, 1994, plaintiff instituted the present suit. The parties have cross-moved for summary judgment. Both parties agree that in the absence of a fair use defense, the Nielsen ad infringes the Moore photograph. The dispositive issue before me, then, is whether the Nielsen ad constituted a fair use of the Moore photograph.

 DISCUSSION

 I. Summary Judgment Standard

 Under Rule 56(c), summary judgment

 
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Fed. R. Civ. P. § 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

  The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The substantive law determines which facts are material to the outcome of a particular litigation. See Anderson, 477 U.S. at 250; Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)).

 If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

 Because of the factual nature of many aspects of a copyright case, a district court should be especially wary of granting summary judgment in cases alleging copyright infringement. See Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.) (summary judgment traditionally frowned upon in copyright litigation), cert. denied, 449 U.S. 841, 66 L. Ed. 2d 49, 101 S. Ct. 121 (1980). In cases involving the fair use doctrine in particular, such as the instant case, "because the fair use question is so highly dependent on the particular facts of each case, courts . . . have usually found it appropriate to allow the issue to proceed to trial." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1258 (2d Cir. 1986), cert. denied, 481 U.S. 1059, 95 L. Ed. 2d 856, 107 S. Ct. 2201 (1987).

 A number of cases in this circuit have demonstrated, however, that summary judgment on the fair use issue is appropriate under some circumstances. Several cases, for example, have upheld the granting of summary judgment in favor of defendant when there has been a finding that no copyrightable material was taken or when a finding of fair use was made as a matter of law. See, e.g., Wright v. Warner Books, 953 F.2d 731 (2d Cir. 1991) (use of copyrighted material not unfair as a matter of law); Maxtone-Graham, 803 F.2d 1253 (same); Hoehling, 618 F.2d 972 (summary judgment appropriate when no copyrighted material taken). Alternatively, other cases in this circuit have made it clear that a rejection of the fair use defense and a subsequent finding in favor of a copyright plaintiff also may be appropriate at the summary judgment stage. In Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.), cert. denied, 506 U.S. 934, 113 S. Ct. 365, 121 L. Ed. 2d 278 (1992), for example, the Court of Appeals held that summary judgment in favor of plaintiff on the fair use issue was proper when the direct evidence is undisputed, or when the evidence was such that no reasonable jury could differ. See id. ; see also United Feature Syndicate, Inc. v. Koons, 817 F. Supp. 370 (S.D.N.Y. 1993) (granting summary judgment in favor of plaintiff after rejecting fair use defense).

 In the present case, the very comprehensive submissions of the parties leave no factual issues concerning which additional, non-cumulative evidence is likely to be presented at trial. See Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706, 709 (S.D.N.Y. 1987). Further, one critical fact distinguishes this case from most copyright infringement actions, in which it is preferable to leave the determination of the issue to a jury: each party has contended that its case is complete by moving for summary judgment. Id. The parties' statements pursuant to Rule 3(g) make it clear that no dispute exists as to any material facts (although the parties vigorously dispute the conclusions to be drawn from those facts). In the interests of judicial economy, therefore, summary judgment is appropriate.

 II. Copyright Infringement

 To establish a claim for copyright infringement of a protected work, a plaintiff must show both ownership of a valid copyright and that defendant copied the protected work without authorization. See Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d Cir. 1992); Weissmann v. Freeman, 868 F.2d 1313, 1320 (2d Cir.), cert. denied, 493 U.S. 883, 107 L. Ed. 2d 172, 110 S. Ct. 219 (1989); Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985). In the present case, the plaintiff is the undisputed owner of the registered copyright in the Moore photograph. As to the second element of copyright infringement, "the plaintiff may prove defendant's copying either by direct evidence or, as is most often the case, by showing that (1) the defendant had access to the plaintiff's copyrighted work and (2) that defendant's work is substantially similar to the plaintiff's copyrightable material." Computer Assocs. Int'l, Inc., 982 F.2d at 701; see also Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2278 (1986). The within case is that rare case where there is direct evidence -- in fact, a frank admission by the defendant -- that the allegedly infringing work is modelled on the copyrighted work. In the absence of a fair use defense, therefore, the defendant would be liable for infringement. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S. Ct. 1164, 1169, 127 L. Ed. 2d 500 (1994) ("[Defendant's] song would be an infringement of Acuff-Rose's rights in 'Oh, Pretty Woman,' under the Copyright Act of 1976, 17 U.S.C. § 106 (1988 ed. and Supp. IV), but for a finding of fair use through parody.")

 III. The Nielsen Ad Is a Parody and a Fair Use of the Moore Photograph

 The purpose of copyright law is set forth in the United States Constitution, Art. I, § 8, cl. 8: "to promote the Progress of Science and useful Arts . . ." Lawmakers and judges generally adhered to the view that the optimal means to encourage the production of creative works was to secure to their creators the exclusive entitlement to resulting financial rewards. Nonetheless, the courts recognized that in some instances the monopoly conferred by copyright protection could limit, rather than expand, the public's access to creative works; copyright would thereby defeat its own purposes. To counteract this potential problem, American courts adopted the doctrine of "fair use." In Folsom v. Marsh, Justice Story explained that the doctrine classified certain uses as non-infringing by "looking to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." 9 F. Cas. 342, 348 (No. 4,901) (CCD Mass. 1841). This judge-made fair use analysis thus balanced the public interest in access to works building on the foundation laid by earlier copyrighted works against the protection of the author's monetary incentive to create.

 The Copyright Act of 1976 clearly derived its codification of a statutory fair use defense from Justice Story's ...


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