So there are these two books about to be released, with some similarities of subject and cover, but also some pretty significant differences (at least in attitude). Would a reasonable consumer distinguish the American dream from the American nightmare?I have to admit, I'm more interested in the cover pose as pose: these appear to be entirely different photographs, yet represent Palin in a nearly identical attitude towards the camera. Though Shepherd Fairey's case is now marred by his conduct, I'm still unconvinced that he took protectable expression from the photo he used. It's striking to me that both photos of Obama have basically the same angle as the photos of Palin: that upward-angled look, the look of a leader.
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I find it hard to believe that these two photos would be considered "substantially similar"--though I guess, absent the "cloudy background" they could be. The pose is so generic it makes me want to say scenes a faire, but I won't.
It seems clear (to me), based on the context in which the second picture ("Going Rouge") is placed, that this cover is a comment on (a parody of?) the first. (Note: Rebecca, I think this would fit into a use the copyright owner may not want to license--and thus may have a strong argument against market harm. Incidentally: Thanks for your post on that issue the other day!) If there is a lawsuit, what are the odds the court frames the question in terms of copyright's distaste for protecting trademark-like rights (e.g., dilution-based claims of criticism).
A zillion years late on this one: maybe the Roman who did this statue of Constantine a millennium and a half ago should sue:
http://en.wikipedia.org/wiki/File:Rome-Capitole-StatueConstantin.jpg
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