MAKEUP AND IPR
WHAT IS MAKEUP?
Makeup can be anything from a simple lipstick to a combination of different cosmetics used to create a specific look. Makeup is not confined to a particular section of society and its use ranges from everyday basic look to actors using it to change their appearances. Makeup can also help hide imperfections on any part of your body, be it blemishes or bruises. With the beauty industry growing rapidly and the influencers as well as artists creating new, innovative and artistic looks; there is an emerging need to protect the rights the parties may have over their creations. Makeup after all is nothing but painting on a canvas with the canvas being a person’s face.
MAKEUP AND COPYRIGHT:
A copyright is nothing but a type of intellectual property that gives the ‘authors’ ownership rights over their creations, provided the creator’s idea has been expressed in tangible form. A copyright can subsist automatically on creation of a new and original work and can be awarded in literary, dramatic, artistic work, sound recording or cinematograph films and also in computer programmes.
Makeup falls under the category of artistic work which is defined under Section 2(c) of the Copyright Act, 1957 as:
“(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) a [work of architecture]; and
(iii) any other work of artistic craftsmanship;”
It takes a lot of time, energy and effort to create any form of art from scratch and that includes a makeup look which demands the same level of protection as awarded to a painting, photograph or any other artistic work. For makeup artists, their subject’s face is a blank canvas which can be transformed into various looks by using the cosmetics in different combinations. The artists should therefore, be given due recognition for their labor to create a new and original look and subsequently can be protected from copycats who do not give the artists due credit. The owner of a copyright gets the exclusive right to not only reproduce, display or distribute the original work but also to create derivative works out of the original.
ESSENTIAL ELEMENTS OF COPYRIGHT:
- New and Original- For a work to be copyrightable, it must be a new and original work of the author. For a makeup artist to acquire copyright over their makeup look, it must be an innovative and original look created by them. This condition removes basic makeup looks like red lips, winged eyeliner, cat eye look etc. from the ambit of copyright protection. Instead, creation of looks like a skeleton face or a full face glow in the dark look, or the famous look of molten gold lips that are dripping color as created by famous American makeup artist, Vlada Haggerty, or the ‘Swarovski crystal-rimmed eyes’ created by Peter Philips, a famous makeup artist and Christian Dior Beauty’s Creative Image Director, etc will be treated as the original work of the artist and be protected under copyright law.
- Idea expressed in tangible form- The idea-expression dichotomy is a universal rule under copyright law that protects the expression of an idea in a tangible form rather than the idea itself. This means that for any work to be copyrightable, it must be expressed in a tangible form. In case of makeup looks, the artist having an idea of a look in their mind is not enough. They must create the look in tangible form, in this case, the face of their subject, to acquire copyright protection over their creative idea.
While the Indian courts have yet to come across any case for infringement of a makeup look, courts around the world in different jurisdictions like USA, Argentina etc have already decided on the subject.
In Carell v. Shubert Organisation Incorporation, the Court decided that the stage makeup of the Cats musical on Broadway was copyright protected because, despite the fact that the actors in the play could change, the makeup was effectively fixed. The makeup for the musical took around eight layers of makeup products which took several hours to complete every night. The court held this to be the original work of the artist that was fixed in tangible form, thereby meeting the essential requirements to gain copyright protection.
In Sammy Mourabit v. Steven Klein, Shiseido Inc., 19-2142-cv (2nd Cir. 2020), the court held that makeup artistry is a copyrightable subject because it is a part of “pictorial, graphic and sculptural works. The Second Circuit Court of Appeals, during appeal proceedings, held that makeup artistry is similar to painting a face, implying that, like paintings, makeup should be copyrightable.
In 2017, a make-up artist who was not properly credited for the makeup she did on models for a magazine shoot was awarded damages by an Argentinean Civil Court. While the court initially dismissed her makeup as an "idea" that did not need legal protection, on appeal, the higher court concluded that there was sufficient evidence to award her damages for both moral and economic reasons. The appellate court observed that creator of the make-up and its work was a ‘meritorious activity’ and so worthy of protection.
ISSUE WITH GRANTING COPYRIGHT ON MAKEUP:
While Courts in some jurisdictions have held that makeup is a copyrightable subject matter and therefore can get legal protection under the copyright law, the point of conflict in granting copyright protection is that though makeup can be fixed in tangible form, it is transient i.e., it can be easily washed of and disappear with time.