This article is written by Samyukta Shankar, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com.
For anybody who is interested in fashion or is active on social media (Snapchat) or follows accounts like Diet Prada on Instagram, a recurring issue that has been raised since 2018 or so has been over the fact of whether makeup creations by Makeup Artists being an expression of thought is an artistic Work should get copyright protection. This has also led to the questioning of a disparity that exists in the beauty/fashion industry where on one hand photographs by photographers or cloth designs by designers are protected, but the same is not necessarily granted to Makeup Artists or their work. It is at this juncture that it becomes important to understand what a copyright is and how are works protected in India.
What is a copyright?
Copyright essentially is used to protect the creators of original work and their interests. The primary reason for the evolution of Copyright law was to ensure that no third person could take credit for or use the Creator’s work for his/her own benefit. This stems from the fact that a Creator spends a lot of time, effort and energy to create a piece of work.
In India, the Indian Copyright Act (Act), 1957 protects the interests of creator’s and their work. The Act covers various kinds of works one such being “Artistic Work”. As per section 2(c) of the Act an artistic work includes any painting, sculpture, drawing, engraving, photograph, work of architecture or any other work of artistic craftmanship regardless of whether the same possesses artistic quality. Which is to say that for an Artistic Work to be protected by Copyright the same need not be of high quality but needs to be an original expression of thought. Expression of thought is something that gains immense significance as under Copyright law an idea can’t be copyrighted, only its expression. Another point to be noted is that for a copyright to be created one does not necessarily need to register the same (though it I advisable), a copyright arises the moment a work with original expression of thought is created.
Now let’s apply this information of copyright to makeup creations with a little bit of context, (you might need to do a bit of social media stalking for this). Mimi Choi a Vancouver based makeup artist has been know all over the social media world for her realistic and never seen before use of makeup to create some of the most stunning works. A casual glimpse of her work would very clearly show how makeup when used effectively can create Artistic Work. However a question that arises is whether her work assuming it was created in India can be protected by the Indian Copyright Law or has any other country considered Makeup to be Copyrightable work?
Position of copyright over makeup under U.S. Copyright law
In the case of Carell vs. Shubert Organisation Incorporation (S.D.N.Y. 2000) the Southern District of New York was faced with a dispute concerning the copyright in certain makeup designs. The Plaintiff Candace Anne Carell was the makeup designer for the New York production of Cats (a musical based on T.S. Elliot’s 1939 poetry book Old Possum’s Book of Practical Cats). The set and costume designer of the musical John Napier (One of the Defendants) told the Plaintiff that he wanted her to use her “pure imagination”. The Plaintiff taking this into consideration created the required makeup designs. Each makeup design that was created by the Plaintiff contained elements that “helped turn human faces catlike”, their application required extensive layering with over six to seven layers that took nearly more than an hour to apply. While in this case the primary issue was with respect to the ownership of the Copyright, it is important to note that the contended makeup designs were considered to be copyrightable.
The reason for this was that the makeup designs were considered to be original expressions of an idea and were fixed in tangible form on the faces of the Cats actors.
Position of copyright over makeup as per Argentinian law
Sometime back in 2017 the Civil Court in Argentina has to decide on the question of whether makeup is a subject matter of protection? The facts of the case were such, a makeup artist had been asked by a magazine to participate in the production of photographs, to which created specific makeup looks. However, to her surprise when the catalogues were realised with the models wearing her makeup, the name attached was not hers. The case for copyright infringement along with the infringement of economic and moral rights was at first rejected by the Court. On appeal the sentence was revoked, and the makeup artist was granted compensation. An important fact that needs to be noted is that while the court did not specifically resolve the case by directly applying the copyright law, it did however, take into consideration the moral and patrimonial rights of the artist to arrive at its decision.
Fixation of the work
As stated there have been case wherein the Courts have acknowledged that the work of a makeup artist can be copyrighted. That being said the main reason for there not being a proper case point is the fact that makeup unlike other forms of work is transient. In the sense that unlike say a painting painted on canvas, makeup can be easily washed off. This raises the question of the fixation requirement in copyright law.
What is fixation? In very simple terms fixation refers to creating the work or transferring the work into some tangible or material form. This is the reason why say a fireworks or something that’s absolutely and can’t be transferred into material form is not considered to be protected by Copyrights. Fixation is the factor that allows the work to be commercialized, it is the thing that protects the interest of the creator. However a question that arises with respect to fixation and is of immense significance with respect to the present discussion is whether a work that is semi-permanent can be considered to be fixed in a material form? If the answer to the above question is yes, then to what extent is transience permitted?
The Berne Convention for the protection of Literary and Artistic Works, 1887 whose primary function is to protect the original works and legal rights of the authors/creators does not specify that only a permanent work can be copyrightable. Instead as per Article 2(2) of the Convention “ It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.” It thus doesn’t address the distinction between permanent and semi-permanent work. An overview of the fixation requirement in different countries shows that common law countries like the US, the UK, Canada have a definite fixation requirement, the same is not the case with civil law countries.
As per the US Copyright law works may gain protection only if they are “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced”, the fixation requirement dictates that the work must be in a permanent or stable form. In contrast as per the Canadian Copyright requirement as held was in the case of Canadian Admiral Corp v Rediffusion, Inc, for a “copyright to subsist in a work it must be expressed in some material form, capable of identification and having a more or less permanent endurance. Here we see that instead of using the term permanent, the fixation requirement has been interpreted to be more than something that is transitory.
The UK law similar to the US states that a work cannot be protected “unless and until it is recorded, in writing or otherwise”.
If one were to look at this from the Indian context, the Copyright Act, 1957 does not mention the term tangible but does use the term material form. However it doesn’t clarify if the material form could be semi-permanent as in the case of makeup.
We see that none of these provisions (except the Canadian Copyright Law to some extent) give much scope for a work of semi-permanent nature to be protected.
In her paper titled “The Berne Convention’s Flexible Fixation Requirement: A Problematic Provision for User-Generated Content” Elizebeth White while talking about the fixation requirement in the United States and its impact on User Generated Content such as photographs, tweets, Facebook statuses. She addresses the question of whether content online can be deemed to be fixed considering that the same can be deleted easily and whether it can be considered to be tangible in the literal sense.
While it is true that a lot of deleted content also gets stored for some time, an important question or inference that can be derived from this paper to the present discussion is that once a fixation has been made (on any surface or platform) is the work protected by copyright regardless of whether the work was destroyed or not. At present there are not many judicial pronouncements on the same.
While it is true that the Indian courts have not had the chance of addressing the question of whether makeup looks are protected by Copyright. An inference that can be drawn from the case in the United States is that only those looks that are absolutely different or of certain artistic value can be protected. The reason for this is that apart from make up not being fixed, it is also something that is very commonly used. There are trends and looks that people all around the world copy and it is not practical to copyright each and everyone of those looks. That being said it is also important to note that certain makeup looks set themselves apart from the generic day to day looks and are what one would call the epitome of creativity. It is such works that probably could be protected.
A major issue with this is however the fact that once one washes their face the creation also gets washed off. This leads to the question of whether copyright should only be attributed to those creations that exist till time immemorial. Along with this a question is also raised in the digital age as to whether a picture of a makeup look would be copyrighted, would the subject of the picture which also happens to be an original creation also be protected. All of this remains yet to be answered.
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