THE ANNIE LEIBOVITZ CASE
COMMERCIAL PARODY AS A FAIR USE

The United States Court of Appeals in New York recently affirmed a lower Court's determination that a knock off of the famous nude profile photograph by Annie Leibovitz of a pregnant and serene Demi Moore which appeared on the cover of Vanity Fair magazine, was a parody and not a copyright infringement under the fair use defense.

The "knock off," in which the head of Leslie Nielson was superimposed on a body recreated to be identical to that in the Demi Moore photograph, was used to advertise the upcoming movie, Naked Gun 33 1/3: The Final Insult.

The key factors to the Court were what is called the "transformative" nature of the new work and the acknowledged absence of any harm to the original work. The "transformative" nature is the addition of "something new with a further purpose or different character, altering the first with new expression, meaning or message."

The use was clearly commercial in nature. But when coupled with the absence of any damage, such commercial use was not enough to defeat the fair use defense.

This opinion appears to add little in the way of actual guidance on the subject, however, since it is so fact intensive, and does not address damages since Ms Leibovitz conceded there was none.

Accordingly, it will be left to the District Courts on a case by case basis to determine whether future claims of parody are truly entitled to prevail or whether such claims are nothing more than non-exempt commercial copyright infringements.