Myth Busting: Yes, An Advertisement Can Be Fair Use Parody

from the keep-busting-those-myths dept

We'd already explained how commercial use can be fair use in the Goldieblox v. Beastie Boys case, but we've continued to see people attacking the idea that an advertisement could possibly be either parody or fair use. I was going to write up something in more detail, but as is all too often the case, the awesome Andy Baio already did it and did it better, with a fantastic mythbusting of a variety of false statements being thrown around by many well-meaning, but not very knowledgeable, people talking about the case. He covers a lot of ground, all of which is worth reading, but I want to highlight the key case he talks about concerning the possibility of an ad being fair use as a parody. On Twitter and in the comments, I saw many people insist that an advertisement couldn't be either of those things, and insisting there were no cases to support the claim. Well, that's not true:

More than any other, I've seen this myth repeated everywhere. Can a company parody a famous artist's work and use it, against their will, to advertise an unrelated product? Actually, yes, as long as the use is transformative enough.

The most famous case is the Naked Gun advertisement below, a parody of photographer Annie Leibovitz's famous portrait of Demi Moore for Vanity Fair.

If you care about this sort of thing, the District Court's decision is a fantastic, and surprisingly readable, breakdown of the history of parody and fair use.

The ruling is well worth reading, citing the same Supreme Court case we talked about yesterday about how commercial use can absolutely be fair use, but directly applying it to this case, where a parody ad was created. While it recognizes that this is a commercial use, it notes that the overall weight of the four factors test makes it fair use:

The fair use doctrine has been described as a "guarantee of breathing space at the heart of copyright."... This breathing space ensures that copyright will not stifle the very proliferation of creative works that it was designed to foster. Three of the four fair use factors in the present case militate in favor of a finding of fair use, largely because the defendant's transformation of the plaintiff's photograph has resulted in public access to two distinct works, serving distinct markets, with little risk that the creator of the first work will be disinclined to create further works that may be open to parody. Because I agree with the Second Circuit that in this case "[a]ccording [the] proprietor [of the copyrighted work] further protection against parody does little to promote creativity, but it places a substantial inhibition upon the creativity of authors adept at using parody, ..." I hold that the fundamental purposes of copyright are best served by a finding that defendant's use of the Moore photograph is a fair one.

Earlier in the ruling, she also notes that while commercial use may be less likely to be protected as fair use, there are plenty of cases where it makes sense, if you understand the purpose of copyright:

I can only reconcile these disparate elements by returning to the core purpose of copyright: to foster the creation and dissemination of the greatest number of creative works. The end result of the Nielsen ad parodying the Moore photograph is that the public now has before it two works, vastly different in appeal and nature, where before there was only one.

Those findings clearly apply in the Goldieblox case as well, where the two situations are nearly identical. In fact, it's arguable that in the Liebovitz case, she actually had an slightly stronger claim than the Beastie Boys would have here.

And yes, this ruling is only a district court ruling in NY, so it is in no way binding on the California court where Goldieblox filed its declaratory judgment suit. But it highlights that, contrary to the claims of way too many people, yes, an advertisement can be a fair use parody of a different work.

Filed Under: advertisements, annie liebowitz, beastie boys, copyright, demi moore, fair use, leslie nielsen, naked gun, parody
Companies: goldieblox

W Korea Uses Demi Moore Photo... With A Different Hip -- So Which One Is Edited?

from the uh-oh dept

So you may recall that last week, the story spread about how Demi Moore's lawyers flipped out and sent ridiculous (laughably so) legal threats to a few blogs that were discussing whether or not Moore's photo on the cover of W magazine had been digitally retouched and, if so, how poor a job the retouching was. Most specifically, there was the point that her hip looked out of place. None of the conversation (which had mostly died out a month before Ms. Moore's lawyers got involved) suggested anything even remotely negative about Ms. Moore herself -- but about the potentially poor editing job on the photo itself.

Of course, once the story was pushed back into the news by Moore's lawyers, a second look at the evidence suggested quite clearly that the image had, in fact, been retouched (not that there's anything wrong with that). And, now, the story gets even more bizarre. Anthony Citrano, one of the bloggers being threatened by Moore's lawyers -- and who has (reasonably) demanded a complete retraction and apology from Moore's lawyers -- got in touch to let us know that the Korea edition of W magazine just happened to have fixed the hip problem on their cover version of the same photo.

As Citrano points out, this leads to one of two possibilities:

1. Citrano was correct all along that the version with the funky hip a bad image edit or...
2. By Moore's own lawyer's explanation, W in Korea had defamed Demi Moore by editing her image (which the lawyers insisted needed no editing)

Either way, at least one of those images was apparently edited, and Citrano's still waiting for that apology and retraction...

Filed Under: cease & desist, defamation, demi moore, photo editing, south korea

Point Out A Potential Photoshopping Of A Demi Moore Picture, And She Has Her Lawyers Send Out The Nastygrams

from the yeah,-that'll-help dept

Sometimes you just shake your head and wonder. It's truly amazing that people don't realize what will happen when they send out ridiculous legal nastygrams. Take, for example, the situation from a few months back where the company Ralph Lauren got itself into a lot more hot water by sending a bogus DMCA takedown, rather than just 'fessing up to the fact that it photoshopped a model's image (badly). But in sending the DMCA takedown, Ralph Lauren called a hell of a lot more attention to a situation that most people would have forgotten otherwise.

Apparently Demi Moore and her lawyers missed that whole story. Back in November some folks noticed what appeared to be a photoshopping of Demi Moore's left hip on the cover of W magazine. There was some debate over it, but either way, people moved on and it was forgotten. Not so fast! While there was some discussion about it -- and Moore herself chimed in on Twitter to claim that the photo was not altered -- she's now had her lawyers threaten at least two publications over the original story. Their claim is that the posts are defamatory. Even if there was no retouching of the photo, it's hard to see what is possibly "defamatory" in the story. Digital retouching happens all the time, and claiming that a photo was retouched, if anything, would implicate the photographers or graphic artists at W, not Moore. There's simply nothing even close to defamatory in regards to Moore herself.

Either way, the really bizarre part is why sic the legal dogs on this? Any lawyer should know that this has zero chance of actually working and a very high likelihood of simply calling a lot more attention to the question of whether or not the image was altered. And, in fact, the guy who apparently first noticed the supposed retouching -- and a recipient of the legal nastygram -- has responded by presenting some pretty compelling evidence that the image was, in fact, retouched. At the same time, he also reiterates that even if this is true, there's nothing wrong with that and certainly nothing defamatory about it. So what was the purpose of the legal nastygram?

And, in the end, what makes Demi Moore look worse? The fact that some cover shoot photo of her may have been slightly altered... or the fact that lawyers on her behalf sent out ridiculous legal nastygrams against those discussing this story?

Filed Under: demi moore, photoshopping, streisand effect

Putting A Movie On TV Before It's In Theaters

from the Mark-Cuban's-latest-experiment dept

While some movie studio execs are still claiming that it's not "technically possible" to release movies in the theaters and elsewhere at the same time, Mark Cuban forges ahead doing just that. A couple years ago he made news for doing a simultaneous theater and DVD release of a Steven Soderbergh film, recognizing that people want to watch a movie wherever it's most convenient to them. Unfortunately, short-sighted theater owners boycotted the movie and the press quickly condemned this "day and date" technique as a failure. Of course, it didn't help that the movie just wasn't that good.

However, that experience hasn't stopped Cuban from continuing to experiment and push the movie industry into this century. His latest, as pointed out by Carlo, is that the new Demi Moore and Michael Caine movie Flawless is actually debuting on Cuban's HDNet TV channel two days before the theatrical release. Slowly, but surely, perhaps theater owners will recognize that they can't rely on artificial scarcity to get people into the seats. They'll have to start innovating and offering a better experience. Perhaps it's worth noting that Cuban is also a theater owner... and appears to actually be working hard on making the theater experience better and experimenting with unique business models. If he, as a theater owner, isn't scared of "competing" against home theaters, why are other theater owners so afraid?

Filed Under: day and date, demi moore, hdnet, mark cuban, michael caine, movies, tv
Companies: hdnet