I’ll take a parodies, please – The Ukiah Daily Journal

A bountiful source of lawsuits has been the law of parody. A “parody” occurs when one person tries to make a political or humorous statement by making fun of something or someone else.

These cases are unpredictable because each parody is unique. Thus, inconsistent results are always popping up.

Sometimes, the person being parodied wins. For example, the company that owns the rights to Dr. Seuss’ books got a court order preventing sale of a book called, “The Cat NOT in the Hat,” in which two men writing as “Dr. Juice” tried to cash in on the OJ Simpson case by mimicking Dr. Seuss’ books (“One knife?/Two knife?/Red Knife/Dead Wife.”) The court decided that this work infringed Dr. Seuss’ copyright, because the books weren’t trying to parody his works, they just copied his “style.”

But sometimes the parodist wins — puppeteer Jim Henson’s company, for example, defeated Hormel Foods when Hormel had claimed that the movie “Muppet Treasure Island” defamed its product SPAM by naming a porcine character in the film “Spa’am.” The court said Hormel instead should have been grateful someone suggested a connection between SPAM and a genuine source of pork.

And then there is the case of noted photographer Annie Leibovitz. She sued Paramount Pictures over Paramount’s advertising campaign for its movie, “Naked Gun 33 1/3: The Final Insult,” the last installment of Paramount’s trilogy starring Leslie Nielsen as maladroit police officer Frank Drebin.

Leibovitz, according to the court, “is a well known and widely published photographer. Among her most recognizable works of her is the photograph alleged to be infringed, ”a photograph of actress Demi Moore that appeared on the cover of Vanity Fair magazine’s August, 1991 issue.

The court explained that Moore, “who was pregnant at the time, was depicted nude, in profile, with her right hand and arm covering her breasts and her left hand supporting her distended stomach — a well-known pose evocative of Botticelli’s Birth of Venus. ” The court also said that, “Ella Moore’s facial expression is serious, without a trace of a smile.”

Now wait, isn’t that always her facial expression?

Anyway, two years later, during its advertising campaign for the third “Naked Gun” movie, Paramount’s advertising consultant came up with the bright idea of ​​superimposing Leslie Nielsen’s head on a series of poses of famous women. Paramount eventually selected the Moore photograph.

But rather than simply use the existing photograph, Paramount went to great effort to reproduce the pose using a different pregnant model — down to having the model wear a ring identical to one Moore wore in Leibovitz’ photograph. Even the lighting was digitally altered to make it closer to the original. Finally, Nielsen’s middle-aged, white-haired head of her was superimposed — except, as the court said, “with her serious look of her replaced by Nielsen’s mischievous smirk of her.” The ads proclaimed, “DUE THIS MARCH,” referring to the movie’s premiere date.

Leibovitz, undoubtedly outraged by that mischievous smirk, sought a court order in the federal court in New York City to prevent further distribution of the ad. The trial court, however, dismissed the case, ruling that this was indeed a parody of the Vanity Fair cover and the use of the pose was therefore a “fair use” of Leibovitz’ work. Leibovitz appealed.

The federal appeals court acknowledged that, “parodies present a difficult case,” but upheld the trial court’s decision. What ultimately tipped the balance for the court was “what a viewer might reasonably think is the undue self-importance conveyed by the subject of the Leibovitz photograph. A photographer posing a well-known actress in a manner that calls to mind a well-known painting must expect, or at least tolerate, a parodist’s deflating ridicule.”

But just to show how unpredictable these cases are, there was the “Tootsie” decision around the same time in California. In that case, Los Angeles Magazine had obtained a photograph of Dustin Hoffman in 1982’s “Tootsie,” in which he portrayed an obnoxious actor who had to pose as a woman to get work. The magazine scanned Hoffman’s face of him, wearing the red fright wig and glasses of his female incarnation in “Tootsie,” and put it atop a red evening gown he had actually never worn, and used it as part of a male “fashion show” parody.

The trial court initially awarded Hoffman $1.5 million because it said the magazine had “manipulated and cannibalized” Hoffman’s image so that he was “commercially exploited” and “robbed [him] of [his] dignity, professionalism, and talent.” But then Hoffman’s victory was overturned on appeal.

Regardless, perhaps the magazine could simply have shown Hoffman as a naked, pregnant “Tootsie” posed as the “Birth of Venus.” Then Hoffman would definitely have been out of luck.

Frank Zotter, Jr. is a Ukiah attorney.

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