Proceedings and analysis
Vanity Fair cover using Leibovitz's photograph of Moore is on the left. On the right, Nielsen's head is superimposed over the body of a model hired by Paramount.
At trial, the Southern District of New York found the use to be fair.
On appeal, the United States Court of Appeals for the Second Circuit affirmed.
Examining the four fair use factors, the court found that although Paramount's photographer drew heavily from Leibovitz' composition, in light of Paramount's parodic purpose and absence of market harm the use of the photograph was a fair use. While Leibovitz had argued that she was entitled to licensing revenue from the photograph, the court found that parodies were likely to generate little or no licensing revenue.
The Court took particular note that, while the composition and posing of the models is the same, other elements are different. For instance, the lighting between the two photos is different: in the Paramount photo the lighting is more garish, including greater contrasts and brighter colors while in the Leibovitz photo the lighting is warmer and more subdued. In the Paramount photo the ring on the model's right-hand is, again, garish, and much larger than the ring Demi Moore is wearing on her right hand. These artistic choices on the part of Paramount's designers heighten the parodic effect. The expressions on the models' faces are also significant: Moore's face has a serious expression, hearkening back to the classical "Venus Pudica" pose, while Nielsen's face bears a smirk, disrupting serious appreciation. The ultimate contrast is that of a healthy pregnant woman, compared with an older man's face superimposed onto a woman's body.
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