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The domain of copyright is much larger than a person of average intellect can imagine. It is no less than a surprise what elements can the basic literary, dramatic, musical and artistic works together with cinematograph films and sound recording holds. A thought-provoking field is makeup artistry. Does it come under the ambit of copyright protection? Let me make it clear by stating a fact. Since enactment of the written-down copyright law till the present-day, over 11,700 arts forms of human expressions are recorded. That simply means all of those including the not-so-apparent spheres are protectable subject matter under the law of copyright thereby sheltering under artistic works. On a similar note, a recent appeal case involving copyright legal tussle between the model Sammy Mourabit and photographer Steven Klein with makeup artist Francoise Nars was adjudicated by the United States Court of Appeals for the Second Circuit.
Well, a little into history reveals, back in the year 2013 Mourabit was featured in a 2013 editorial in W magazines. The displayed photograph was clicked by Klein and the Mourabit’s makeup was entirely the work of Nars. According to the model, the cause of action arose when he came across that his snap from the photo shoot over packaging and promotional material of a NARS cosmetic collection, without any prior consent or authorization per se. Owing to such deed, the aggrieved model filed a copyright infringement suit in August 2018 before the US District Court of Southern District of New York. Various allegations were raised by Mourabit in the plaint including, “blatant and mendacious deception of the public and theft without compensating him or giving him credit for his work” and “fraudulent and illicit” act of claiming the non-authorized copyright over conflicting image.
Moving on, in July 2019, the District Court opined that makeup artistry forms a part of “pictorial, graphic and sculptural works” and therefore, is a copyrightable subject matter. Declaring makeup works to “fall within the preemptive scope of Copyright Act” the court dismissed all of the Mourabit’s claims including copyright infringement, unjust enrichment, and unfair competition along with violation of NY General Business Law.
As it seems, one defeat wasn’t enough for Mourabit. To fight against the District Court’s ruling, Mourabit approached the Second Circuit with an appeal arguing that the makeup design appearing in the said photo-shoot does not fulfill the requisites; in fact, it “was not fixed in a tangible medium of expression”. Accordingly, it can be granted copyright protection.
In June 2020, finally the second circuit put an end to this 2-year old copyright battle weighing the decision in favour of the defendants. The 3-judge panel pointed out, the scope of Copyright preemption is far wider than particular copyrightable materials. Further clarifying, it need not fall under the areas mentioned but in any one of the categories. As far as the present case is concerned, makeup artistry can plainly be described as applying paints to someone’s face and well, paintings are 100% protectable. It was concluded, “Mourabit plainly consented to the photographing of his work by Klein: after all, creating such a photograph was the goal of the photo shoot” and also, “the fixation of his makeup artistry in the photograph occurred under Mourabit’s authority.”And just like that, Mourabit lost again.