SPECTRUM OF FACIAL MAKEUP PROTECTION
Jillions of influencers and artists showcase their makeup artistry on various social media platforms like Instagram, Snapchat, YouTube, and others. Copyright laws are meant to protect the artistic work of creators. However, a question arises: does every artist fall under the exact legal definition of an author? Today, I would like to explore the question—“Is your makeup copyrightable in any country?”—under various legal systems around the globe.
Copyright laws primarily aim to safeguard the interests and sole authorship of creators by protecting their original work. If a third party infringes a copyrighted work, the creator may be entitled to compensation.
India
In India, an artist's creation is protected under the Copyright Act of 1957, which has a broad scope. This Act explicitly defines “artistic work.” As per Section 2(c), artistic work includes a painting, sculpture, drawing (including maps, charts, diagrams, or plans), engraving, photograph, work of architecture, or any other work of artistic craftsmanship—regardless of whether the work possesses artistic quality.
This means your work does not need to be of supreme artistic quality; it only needs to be original to be copyrightable. However, copyright law does not protect mere ideas—the idea must be expressed in a tangible form to qualify. Therefore, if you are the creator of an original artwork, it is advisable to register your work under copyright law. Although registration is not mandatory (as copyright exists upon expression), it strengthens legal protection in case of future infringement.
In the UK, the High Court in the Adam Ant case ruled that, under Section 3 of the Copyright, Designs and Patents Act, facial makeup cannot be considered a painting.
In the 1983 case Merchandising Corporation of America v. Harpbond, the court noted that:-
“Painting was not defined in the Act but was a word in ordinary English usage,” adding that “it was a question of fact in each case whether the subject qualifies as a painting.”
The word “surface” played a crucial role in the judgment. The court held:-
“A painting must be on a surface. If there were a painting in this case, it must be the makeup marks plus the second plaintiff's face. If the marks were taken off the face, there could not be a painting.”
The UK court further noted that if the makeup was depicted on paper in the form of a sketch or drawing, it might be eligible for copyright protection, but not otherwise.
France
French intellectual property laws are more flexible. They do not require creative works to fit into predefined categories. Unlike UK law, French law does not focus on the surface (e.g., the skin) or the fixation of the work as a condition for protection. As a result, makeup artistry may be more likely to qualify for copyright protection in France, assuming the work is original.
In Argentina, courts appear to support fashion and beauty industry artists, not necessarily through copyright laws directly, but under the protection of moral and patrimonial rights of the artist.
For instance, in 2011, a case arose where a magazine publisher gave credit for makeup work to the wrong person. Initially, the court rejected the case on grounds that the makeup work lacked originality. However, upon appeal, the court awarded the makeup artist compensation for violation of moral and economic rights, recognizing the value of their contribution.
Nice👍
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