Book cover inspired by Obama Hope poster

'Is it legal', 'can I do this' type questions and discussions.
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Book cover inspired by Obama Hope poster

Post by mrben »

One of my ideas for a book cover is based on Shepard Fairey's Hope poster, used in Obama's 2008 campaign, depicting someone other than Obama, but using similar colours, typography etc.

Does anyone know the copyright implications of this? On the one hand it's a different image of a different subject, drawn from scratch, but on the other it's clearly meant to reference the original poster... would this be okay as a derivative work?

Thanks in advance for any advice.
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Post by AndyJ »

Hi mrben,
It is interesting that you have chosen that particular poster as last year Fairey was himself involved in a copyright court case because he had based the portrait of Obama in the poster on an Associated Press photograph taken by Mannie Garcia. The case was eventually settled although the full terms were not disclosed.

Fairey is no stranger to copyright litigation having sued graphic designer Baxter Orr in 2008 over the latter's re-working of Fairey's iconic Obey Giant graphic. That case is discussed here.

So with those two cases in mind, where do you stand? Under the US copyright legal doctrine of transformative use you would almost certainly be able to produce an image 'in the style of' without any fear of serious litigation. But UK law is not quite so clear-cut. Or perhaps I should say that UK law was accepted to be fairly clear cut until a court decision earlier this year rather threw things up in the air. Copyright protects the expression of an idea, not the idea itself, and so because your subject matter would be entirely different to the portrait of Obama, you would not be using the same expression, just recreating the look and feel of the Hope poster. At best that might be termed a pastiche, but it sounds from your description as if the connection would be much looser, since many artists have used a similar posterized technique in their work. The court decision which controversially seemed to undermine this approach concerned two images of London Routemaster buses on Westminster Bridge with the Houses of Parliament in the background and despite the fact that they were two completely separate images taken from different places and with significant compositional differences, His Honour Judge Birss QC found that the second image infringed the copyright of the first largely on the basis that the defendant was deliberately trying to copy the idea in the first image but although he sought to express the idea in a slightly different way, the difference was not great enough for it not to be infringement. Since this was the second time the claimant and defendant had clashed over infringement of the original photograph, the defendant clearly could not claim that he had arrived at his image without reference to the original.
But that was a case between two commercial companies where there was also the hint of an unfair attempt by the defendant to take advantage of the popularity of claimant's products in the tourist market.
You on the other hand will be making your artistic work for a different, more aesthetic purpose, and since Fairey is a fellow artist, one would hope that he will take a more benign view of your homage to his work.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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