Simić v. Bosnia and Herzegovina
Bosnia and Herzegovina
Closed Expands Expression
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The United States District Court for the Southern District of New York ruled that a commercial parody qualified as a fair use of the original. After the controversial August 1991 cover of Vanity Fair featuring Demi Moore, photographed by Annie Leibovitz, was parodied by Paramount Pictures to promote the release of a film in its Naked Gun franchise, Leibovitz sued for copyright infringement and Paramount asserted that the advertisement was protected by fair use. The Court found that the advertisement qualified as fair use because its “strong parodic nature” outweighed the fact that it promoted a commercial product, was sufficiently transformative by adding something new to the original, and had little-to-no impact on the market value of the original.
In August 1991, the cover of the magazine Vanity Fair featured a photograph of the actress, Demi Moore, nude and eight-months pregnant. Moore was photographed by photographer, Annie Leibovitz, in the pose “evocative of Botticelli’s Birth of Venus” – “in profile, with her right hand and arm covering her breasts and her left hand supporting her distended stomach” [p. 1-2]. The cover photo generated attention and the issue became one of the magazine’s best ever sellers.
In 1993, to advertise their upcoming film, Naked Gun: The Final Insult 33 ⅓, Paramount Pictures worked with Dazu, Inc., an independent advertising agency, to create an advertisement featuring the head of the main actor in the Naked Gun franchise, Leslie Nielson, superimposed on the body of a naked, pregnant women. Although Paramount solicited a model to pose for the picture, “[g]reat effort was made to ensure that the photograph resembled in meticulous detail the one taken by Leibovitz [of Moore]” [p. 2]. The teaser poster was run in magazines in 1994.
In December 1994, Leibovitz brought an action in the US District Court for the Southern District of New York seeking an order that Paramount’s advertisement was a copyright infringement. The District Court acknowledged that both parties agreed that the advertisement was a copyright infringement in the absence of any defense, but the Court accepted Paramount’s defense of “fair use” and granted summary judgment in its favor. The fair use doctrine “permits other people to use copyrighted material without the owner’s consent in a reasonable manner for certain purposes” [p. 3]. The District Court noted that the Constitution specifically addresses the need for copyright protection in section 8 of article 1, but that the courts and then Congress – through the Copyright Act, 1976 – introduced the fair use doctrine as a way to balance the rights of creators with the public interest of expanded access to creative works. The District Court noted that the goal of a judgement in a fair use defense is to “secure public access to the greatest number of creative works” [para III, District Court Judgment].
The District Court stated that courts must assess the four factors listed in section 107 of the Copyright Act: the purpose and character of the new work; the nature of the copyrighted work; the amount and substantiality of the portion of the copyrights work used; and the effect of the new work on the market value of the copyrighted work. It applied the first factor and recognized that courts had historically prioritized the purpose of any allegedly copyright infringing work, and, with reference to Acuff-Rose v. Campbell, 972 F.2d 1429, 1439 (6th Cir. 1992), noted that any work with a commercial purpose was “presumptively unfair” [para. A, District Court Judgment]. However, it stressed that the Supreme Court, in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), had rejected this approach and held that the commercial nature of a work was only one element to consider. The District Court referred to the Campbell case which had characterized a parody as work which “must comment upon or criticize the original copyrighted work” and needs to “mimic an original to make its point” [para. A, District Court Judgment]. The District Court accepted that the Paramount advertisement was a parody because “[l]ike all parodies it relies for its comic effect on the contrast between the original…and the new work” and that without reference to the Vanity Fair cover, the advertisement was “simply not very funny” [para. A, District Court Judgment]. The District Court held that although the Paramount advertisement was created to suit a commercial purpose, the highly transformative character of the work outweighed that commercial purpose.
The District Court noted that although the nature of the copyrighted work is generally a fundamental factor (as set out by the Copyright Act) in assessing whether the defense of fair use is permissible, this is not as relevant when the work is a parody because parodies, almost by definition, “copy publicly-known, expressive works” [para. B, District Court Judgment]. In respect of the “amount and substantiality” factor, the District Court also referred to the Campbell case in acknowledging that parody is afforded an ability to use more of the original copyrighted work than other fair users and that “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable [para. C, District Court Judgment]. For the determination of this factor, the key question, therefore, was whether or not the advertisement went beyond what was “reasonably required” to conjure up the Moore photograph. The Court found that copying the pose, nudity, and state of pregnancy in the original was “absolutely necessary” for the parody to be effective, and that although the advertisement “closely mimicked” the pose, lighting, backdrop, body configuration, and skin tone of Moore in the original, the creators used a different model and that the addition of Leslie Nielsen’s head and “markedly different” facial expression were significantly transformative [para. C, District Court Judgment]. Accordingly, the District Court found that the third factor favored fair use because Paramount had taken no more than was necessary to conjure up the widely-known image and “added something distinctly new for humorous commentary” [para. C, District Court Judgment].
In respect of the impact of the Paramount advertisement on the market value of Leibovitz’s original, the Court noted that effective parody, which transforms the original work, is “unlikely to serve as a market substitute” [para. D, District Court Judgment]. In addition, because Leibovitz had acknowledged that she “noticed no adverse effect on the sale or licensing” of the original photograph after publication” of the advertisement, the Court held that this factor favored Paramount [para. D, District Court Judgment].
The District Court ruled that as three of the four factors set out in the Copyright Act favored Paramount, their use of Leibovitz’s copyrighted work was fair. The Court noted that the transformation of the original was key, as it created two distinct works “serving distinct markets” and that finding a fair use in this case best served the “fundamental purpose” of copyright [conclusion, District Court Judgment].
Leibovitz appealed the decision to the Court of Appeals for the Second Circuit.
Judge Newman delivered the opinion of the Court. The central issue for the Court’s determination was whether Paramount was permitted to use the defense of fair use as all parties accepted that there was a copyright infringement through Paramount’s use of the photograph parodying the Vanity Fair cover.
Leibovitz argued that the District Court had erred in granting summary judgment in favor of Paramount. She argued that – even if the film advertisement was considered to be a parody – Paramount could not use the fair use defense because “it was employed for commercial purposes and because it replicated more of her original than was necessary” [p. 3].
Paramount accepted that their work was a copyright infringement but argued that it was a parody and should be evaluated against the standards established in the Campbell v. Acuff-Rose Music Inc. 510 U.S. 569 (1994) case for “determining whether parodic uses are ‘fair’” [p. 3].
The Court noted that the fair use doctrine had first been accepted under common law but was then codified in section 107 of the Copyright Act, 1976. Section 107 sets out the factors for courts to assess in determining whether the use of the material 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” [p. 3]. The Court referred to MCA Inc v. Wilson 677 F.2d 180 (2d Cir. 1981), Elsmere Music, Inc. v. National Broadcasting Co. 623 F.2d 252 (2d Cir. 1980) and Berlin v. E.C. Publications, Inc. 329 F.2d 541 (2d Cir. 1964) in emphasizing that courts have accepted that the fair use doctrine is applicable to parodies, notwithstanding that section 107 does not explicitly address them.
The Court provided a detailed analysis of the standard set out in Campbell and noted that the issues must be determined on a case-by-case basis and that all four factors set out in section 107 should be examined and then “weighed together” [p. 3].
In assessing the first factor – the purpose and character of use – the Court noted that the Campbell court had explained that the focus should be on whether the copying work “supersedes” or “adds something new, with a further purpose or different character” to the original which then gives the new image “new expression, meaning or message” [p. 4]. The Campbell court had rejected the approach in Sony Corp. of America v. Universal City Studios Inc. 464 U.S. 417 (1984) which presumed any commercial use of copyrighted material as unfair, and instead accepted the position in Harper Row Publishers Inc. v. Nation Enterprises 471 U.S. 539 (1985) which used commercial use as only one factor weighing against a finding of fair use. The Campbell court had focused on the “transformative” nature of the use – that is, transforming the original by adding something new – and rejected prior jurisprudence that any one factor was more important than the others. The court in Campbell had specifically focused on the fair use defense for parodies, and had noted that a party seeking to use the defense for a parody had to work through all of the four factors and be judged on its merits. The Campbell court had described the nature and purpose of a parody as being “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” and that, while the quality of the parody is not relevant, a court must determine whether it is reasonable to perceive a parodic character of the work [p. 4].
In respect of the second leg of the inquiry – the nature of the copyrighted work – the Campbell court had commented that, when assessing parodies, this factor is “not much help” because parodies “invariably copy publicly known, expressive works” [p. 4].
Similarly, in respect of the third leg – the amount and substantiality of the portion used in relation to the copyrighted work – the Campbell court had noted that a parody “necessarily springs from recognizable allusion to its object through distorted imitation” [p. 5]. The focus here is on how much can be taken from the original in order to “conjure up” that original, and the Campbell court had departed from previous jurisprudence which permitted only what was necessary to conjure up the original, and instead held that there were other factors to consider in determining what was nevertheless reasonable in the circumstances (when the parody took more than was necessary to conjure up the original). Here, the Campbell court had looked at the “extent to which the [copying work’s] overriding purpose and character is to parody the original” and the “likelihood that the parody may serve as a market substitute for the original” [p. 5].
In looking at the fourth factor – the effect on the market for the original – the Campbell court emphasized that the markets for an original and parodies were different. It added, though, that harm might arise to the original “if the parody serves as a market substitute for a derivative work based on the original” [p. 5].
The Court then applied the Campbell principles to the present case. In respect of the first factor, the Court held that Paramount’s advertisement “adds something new and qualifies as a ‘transformative’ work” [p. 5]. The Court focused on Nielson’s smirk in comparison to Moore’s serious expression and noted that “the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original” [p. 5], and on expressing disagreement with Leibovitz’s celebration of the female, pregnant body [p. 6]. However, the Court stressed that it is not sufficient for there simply to be a difference in the parody to the original – the difference must be something that is “perceived as commenting, through ridicule” on some aspect of the original [p. 5]. As part of the first factor test, the Court acknowledged that Paramount’s advertisement served a commercial purpose in promoting their film and that this “lessens the ‘indulgence’ to which the parodic ad is entitled” [p. 6]. However, the Court accepted Paramount’s argument that the poster should be seen rather as an extension of the film than purely an advertisement for the file because of the film’s joking references to pregnancy. The Court concluded that 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” [p. 6].
The Court accepted the reasoning in Campbell in applying the second factor to the present case, holding that the creative nature of Leibovitz’s original does not provide much help in determining whether Paramount’s parody was fair use. It noted that “[t]he second factor therefore favors Leibovitz, but the weight attributed to it in this case is slight” [p. 6].
In examining the third factor, the Court stressed that Leibovitz was only entitled to protection of the “particular expression” of a nude, female pregnant body and so, in examining the amount and the substantiality of what Paramount used, the Court had to focus on Leibovitz’s particular expression. The Court commented that Paramount had sought to replicate Leibovitz’s take on the pose and so held that they had taken more that was “minimally necessary to conjure [Leibovitz’s image] up” [p. 7]. However, the Court held that this factor – weighed against the others – did not provide Leibovitz with much help because the extent to which the parody went above what was necessary had to be considered in respect of its purpose and its ability to serve as a market substitute (both of which factors favored Paramount).
The Court acknowledged that Leibovitz had accepted that Paramount’s image did not affect the potential market for her own image: her main argument here was that Paramount’s reliance on the fair use defense deprived her or a license fee for their use. The Court held that Leibovitz is not entitled to a license fee for a work that “otherwise qualifies for the fair use defense as a parody” [p. 7].
The Court weighed up all four factors and held that the balance favored Paramount. Accordingly, the Court affirmed the District Court’s judgment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The reasoning in this case drew heavily on the relatively recent Supreme Court decision in Campbell v. Acuff-Rose and the Court underscored the importance of a more holistic approach when evaluating a fair use defense for parodies, in contrast to the “hard evidentiary presumption” against a fair use defense by commercial parody that prevailed before the outcome in Campbell.
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