Annie Leibovitz photographed a nude, pregnant Demi Moore for a cover of Vanity Fair magazine. Paramount Pictures ("Paramount") produced an advertisement for the comedy film “Naked Gun 33 1/3” featuring the body of a nude pregnant woman posed like Moore, with Leslie Nielsen’s head replacing that of the Demi Moore look-alike. At trial in the Southern District of New York, Paramount successfully asserted a fair use defense. Leibovitz appealed, arguing that even if the advertisement was properly considered a parody, it still was not fair use because the parody had a commercial purpose and used more of the original photograph than necessary to conjure up Leibovitz’s work.

The Second Circuit rejected Leibovitz’s arguments and affirmed the district court’s decision. Citing the Supreme Court’s 1994 landmark decision, Campbell v. Acuff Rose Music, the district court explained that, to be considered fair use, parodies need not limit themselves to taking no more than the amount necessary to conjure up the target of the humorous commentary. In this context, the district court determined that Nielsen’s smirking expression could be interpreted as a direct comment on the “pretentiousness” of Leibovitz’s image of Moore. Thus, the district court held that the parodic element outweighed the commercial character of the advertisement and the artistic nature of the original work.

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