NAIL ART AND IPR
WHAT IS NAIL ART?
With the rapid growth of the beauty industry over the last decade, a simple task of painting your nails with single color has now evolved to, what is called, nail art. In simple terms, nail art can be described as the art of painting, drawing or decorating one’s nails. Be it on your toe nails or finger nails, nail art is now considered to be a fashion statement. It can range from drawing simple lines and shapes to using glitters, stencils, crystals etc for embellishing the nails. Nail art is a creative process that is budget friendly, trendy, and like any other artistic work, deserves to be protected under the copyright law. Copyright protection will award to the owners, economic benefits and due credit for their creative mind and artistic efforts.
NAIL ART AND COPYRIGHT-
Copyright is the legal right granted to owners over their literary, artistic, musical, dramatic work, among others. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring the same. According to Section 2(c) of the Copyright Act, 1957 (hereinafter referred to as Act), artistic work is defined 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;”
Since nail technicians/nail artists have to use their creativity and artistic skills to create nail art, it may be said to come within the scope of artistic work, as can be seen from the above definition. However, to come within the purview of copyright protection, the nail art needs to be a unique, original artistic work or graphic work that has been expressed in a tangible form. While performing nail art on their clients nails may be considered as a tangible medium, it is not long lasting and will easily wash off and disappear. Therefore, to acquire copyright protection for their artistic work, it is favorable for the nail technicians to keep a photographic evidence of the art created by them to satisfy the condition of expression in tangible form.
NAIL ART AND COPYRIGHT ESSENTIALS-
For nail art to be protected under the Indian copyright law, it must satisfy the following requirements:
- It must be new and original: Nail art is an unconventional form of artistic work and therefore, to be awarded copyright protection in the same, the artist must create a novel, unique, innovative and original artistic or graphic work. This implies that merely adding a new color or using different color of nail paint would not make the work eligible for copyright protection. One of the most well-known nail arts is, what is coined as the ‘Balenciaga effect’, i.e., the high-end brand’s iconic ‘B’ painted on the models’ nails in their 2017 fashion show. Another example of unique and original nail art is the ‘caviar manicure’.
- It must be expressed in tangible form: For a nail artist/nail technician to acquire a copyright, it is necessary for them to express their creative idea in a tangible form. This essential is drawn from the idea-expression dichotomy which is a universally accepted rule of copyright. While the nails can be considered a tangible form of expression, nail artists should take the pictures of their nail art design to be awarded copyright protection.
Ever since the 2017 Balenciaga Fall Fashion Show, logo nail art has become increasingly popular among high end brands like Gucci, and Louis Vuitton. Nail artists all over the world are reproducing not only logos, but also slogans, brand names, cartoon characters, caricatures, and other images in the form of nail art. This raises the question of whether the nail art infringes on the owners' copyright and trademark. If the nail artists create the art for their clients and for financial gain, they are infringing on the rights of the IP owner and liable to pay damages. However, if the unauthorized reproduction is for personal use, artists are protected under the fair use/fair dealing doctrine. This doctrine has been laid down under Section 52 of the Act in India. While many companies would not find out if the nail artists are reproducing their intellectual property, companies like The Walt Disney Company are known for initiating litigation against the infringers.
Nail artists, to avoid infringing the copyright/trademark of others, can get prior written permission from the copyright/ trademark holders in the form of licensing agreements and may be required to pay an annual licensing fee to compensate the right holder.
IP Protection of Nail Art
To acquire copyright protection over their work, nail artists/nail technicians should:
- Refrain from posting drawings/pictures of their art on social media before acquiring registration, because once in the public domain, it may become difficult to acquire copyright
- Register their unique and original nail art for copyright protection under Section 45 of the Act
- Take action against infringers, in the form of cease and desist notices, who reproduce their art without giving due credit.