Is there copyright in conceptual art?

Damien Hirst was recently reported to be suing British Airways over its campaign for the low cost airline, go.

We could find no trace of any claim at the Court, but does Hirst have a point?

The go advertisement consists of a regular grid of 6 x 5 coloured circles. There are 8 different colours for the circles and these colours are repeated within the grid in an irregular pattern.

Hirst has produced a large number of “spot” paintings, with names such as Arabic Acid, Aprotinin and Arabinitol. Like the ad, they all consist of regular grids of coloured circles.

The main difference between the go ad and the “spot” paintings is the spacing of the circles. In the ad the circles are very close to each other, in the paintings they are more widely spaced.

It is tempting to dismiss Hirst’s claim out of hand (BA called it “dotty”). However, the ad and the paintings do have one telling detail in common: most of the ad’s 8 colours are very similar to colours in the paintings.

The legal issue is whether British Airways produced an original work of its own (possibly inspired by Hirst’s idea) or whether it plagiarised a substantial element of the original expression in Hirst’s work. The similar colour scheme may lend some weight to Hirst’s claim. However, there is no copyright in ideas and it must therefore be difficult to protect conceptual art based primarily on ideas rather than expression.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.