In an era where present-day art and the artists know no definite form, it is important to highlight the protection (or lack of) available to the authors. While scrolling through social media feeds and reels, it is very common to come across the perfect makeup transformations and be in awe of the artist. One trend specially on the rise is makeup inspired by emojis. While the most basic makeup could be termed as Scenes a Faire and Public Domain work and traditional body painting as Cultural Expression protected as Traditional Knowledge, there are certain Avant Garde Makeup artists who surely leave an impression. Let’s talk about their protection!
Under the Copyright Act 1957(‘Act’), there is a requirement of originality to confer Copyright protection. This requirement is often followed by the fixation requirement in the western countries. In case of India, however, there is no explicit use of the term ‘fixation’ in the Act. In the definitions of the various Subject Matters under Copyright protection, there may be use of certain terminologies indicating this fixation requirement. Take for example, dramatic works in Section 2(h), there is a prerequisite for the work to be fixed in writing. But that’s just one case, in other Subject Matters, one must presume what the ‘general mode of expression’ is for that kind of work to fulfil the fixation requirement, which on the face of it looks easy but often leads to scratching heads.
And the confusion just doesn’t relate to the form of the work but sometimes also with regards to the type of work. Certain Subject Matters are open ended and others, closed ended. The most difficult to presume protection is for the Artistic Works (defined under Section 2(c) of the Act). No other Subject Matter can have a more varied form than this. It is an irony to even attempt to confine the forms of art included in this list. It’s not just my personal opinion, but the law-makers felt the same way and decided to keep it open ended by including the term ‘any other work of artistic craftsmanship’ in the definition. So, are makeup artists protected under this head?
For a lot of artists, the most important thing is to transition what’s in their head to a tangible medium for everyone to enjoy and take inspiration from. I have purposely decided to elude the question of whether blank canvas is protectable art or not! For makeup and for this purpose any face or body art, whether for commercial exploitation or a symbol of cultural expression, it is no doubt that the artist makes the best creative choice to be original and make their art worthy of protection and appreciation. So, there is not much dispute with regards to the originality. And the artistic quality is also not a prerequisite. The judges are advised to hold artistic neutrality while deciding on originality in disputes like such. The catch here lies in the question of human body being the best canvas or not, for them to express.
Now, there isn’t much dispute about Copyright protection for some permanent expression even on the human body in terms of tattoos (see here, here and here). But when we talk about makeup, the issues of not just the transitioning human body but the fact that the makeup would be washed off completely in the near future also needs to be addressed. There is a more psychological belief that artists create for their art to be permanent, to help establish their name and fame for time immemorial. This belief makes it difficult to consider the question of protection for temporary art. Such destructive approach may also make us question the Copyright protection available to other artistic works available only for a short period of time like ice sculptures, cake designs, special designs and textures on the makeup products, nail art, and fabric arrangement (see here).
India is yet to be faced with this question, but U.S. and other countries are receiving a lot of benchmark judgments to decide how far the makeup artist can go exploring their creative freedom without getting worried about copying from other artists. In the U.S., recently, in the case of Sammy Mourabit v. Steven Klein, the trial court did finally come to conclusion that the broad category of artistic works will include makeup as well. It did not shed light on the issue of fixation requirement yet. The Second Circuit though, in order to deal with the state law pre-emption claims, did conclude that the photograph is a fixed medium of expression for makeup. Although the makeup artist withdrew his infringement claims of the photograph before trial, there are a few takeaways from the pleadings.
Firstly, the makeup artist had the drawings of his makeup registered with the Copyright office (probably for the infringement claim!). This is similar to deciding whether there is copyright protection available to art displayed on useful articles through Conceptual Separability Test. The court did not make a direct reference to the said test or case law, but the comparison of makeup to a ‘Painting on a face’ draws a very close comparison hinting that the transitory nature of the human body doesn’t create a lot of difference. Secondly, the photograph, video or even another derivative work in the form of an actual painting becomes a medium of fixation. These works are often authorised or commissioned with the permission of the makeup artist. Many other forms of non-fixed arts like Choreographed dance hold on to their protection through video films. In this way, the work gets fixed in a more permanent form.
So even though the courts were closer to answering the question of human body as a fixed medium of expression, they did not do so. In an older dispute related to copyrightability of makeup designs in the Broadway Musical, Cats, the District Court found the face paintings to be copyrightable without a doubt regarding the fixation requirement.
Based on the aforesaid, I believe that the issue of human body being a tangible medium of expression is decided based on the laws of each country. In some countries like the U.S., there is a very strict requirement, and the human body might not be able to fulfil that due to its semi-permanent nature. But countries with a more open-ended approach like India, it all depends on the interpretation of the Act. A bare reading of certain sections gives an understanding that we are more focused on the originality requirement than on the fixed medium one. If the work is expressed and original, there is a very high chance that the fleeting nature of human body and the makeup designed to get washed off, would not bar some unique, distinctive and talented artist to claim protection. We take inspiration from the trademark protection in the U.S. accorded to the music band KISS for their geometric makeup.
Till this issue gets addressed by a competent court in India, it is advisable to keep transition of the makeup in a drawing or a photograph form. Also, if the work is done for a commercial purpose, it is always better to keep the rights clear through Contracts law. Lastly, granting protection to only those work which are fixed in a permanent form may need to be reconsidered. Interestingly, the belief of permanence is very proverbially destroyed in cases of temporary Buddhist Sand Mandalas, a very creative art form ruined by the originality requirement.
Mahak Kansara is an Advocate registered with the Bar Council of Rajasthan. She is an alumna of the Institute of Law, Nirma University, Ahmedabad. She is currently practising as an Independent Counsel in the fields of Intellectual Property Rights, other Commercial Laws, and Women and Child Rights. She is also a program officer with Law for Aid and Welfare.
Reach out to her at firstname.lastname@example.org for any intellectual discourse.