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.

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  1. icon
    Karl (profile), 26 Nov 2013 @ 5:49pm

    Re: Re:

    the strong objection to a feminist version of the lyrics

    Actually, that isn't their objection. c-ads-fair-use-doesnt-care.shtml

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