Get Over Yourself: Parody and Fine Art

PICTURE IT.

Famed photographer Annie Leibovitz owned copyright in her photograph of actress Demi Moore, pregnant and naked, which appeared on the cover of the August 1991 Vanity Fair.  Thereafter, film studio Paramount Pictures promoted the release of Naked Gun 33 1/3: The Final Insult by superimposing the face of the movie’s male star – Leslie Nielsen – on a pregnant female image modeled after Leibovitz’s photograph. Leibovitz sued Paramount for copyright infringement.

Federal judge Loretta A. Preska in Liebovitz v. Paramount Pictures Corp., 948 F. Supp. 1214 (S.D.N.Y. 1996), held that the Naked Gun ad was a parody and passed the legal test of constituting fair use of the copyrighted Moore photograph because the new work could reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original. On appeal, the Second Circuit concluded that the advertisement qualified as a parody entitled to the fair use defense and thus affirmed the district court holding in favor of Paramount.

JUDGING PARODY

On Nov. 30, New York Southern District Chief Judge Loretta A. Preska will present a captivating closing keynote address at the Federal Bar Association’s Art Law & Litigation Conference in Miami, Florida. “Get Over Yourself: Parody and Fine Art” will examine a host of compelling legal concepts, including the fair use doctrine, the parody/satire distinction, the First Amendment, and the extent of transformation concerning the parody’s relationship to the original work. To register, please visit: www.fedbar.org/ArtLaw16.

With great affection and enthusiasm, Judge Preska discussed with me the upcoming conference, remarking that attendees could look forward to “Lots of visuals. This is one of the most entertaining areas to research. The fact that the Nielsen image is poking fun at the original work makes it even more valuable. Parody does help us raise issues that spark greater thought.”

The FBA is well positioned for hosting such an illuminating conference. “I have always found the FBA programming to be very high quality. They have practitioners who are at the top of their fields and judges who are at the top of their fields,” Judge Preska observed.

UNBUNDLING COPYRIGHT & FAIR USE

The Constitution (Article 1, Section 8, Clause 8) permits Congress to “promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries ….” That enumerated power led to the organization of America’s federal copyright scheme, which affords copyright holders a limited monopoly to sell, reproduce, perform, display, and create works. American copyright jurisprudence adheres to its constitutional goal of promoting artistic progress by striking a careful balance between providing artists an incentive to design/create and allowing future artists to build upon works that came before them.

The fair use doctrine—an affirmative defense to an allegation of infringement—has been described as a form of legal breathing space that attempts to ensure copyright will not suppress the very production of creative works that it was designed to foster.

Experience a decidedly thought-provoking keynote address that covers commercialism, social criticism, and humor. Sign up today for the Art Law & Litigation Conference at www.fedbar.org/artlaw16 and follow the FBA’s blog at blog.fedbar.org!

Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations and social media campaigns.