Protect Your Face: Body Art and Copyright (Part II)

April 18, 2016

By Samantha Elie

While some of us makeup challenged women consider it a feat of artistic brilliance when we achieve that perfect cat eye with our eyeliner, an individual’s makeup art is not protected under copyright law unless that cat eye is the final touch in a Cat’s stage makeup. In the landmark case Carell v. Shubert, 104 F.Supp.2d 236 (S.D.N.Y. 2000), the Southern District of New York held that the stage makeup featured in the Broadway musical Cats was protectable under copyright law. Even though the actors in the show changed, the court considered makeup to be sufficiently fixed in the same way they consider choreography (with its ever-changing dancers) to be fixed. The Cats makeup, which required up to eight layers of makeup and several hours of work each night, was found to be an original work of authorship that is fixed in a tangible medium, thereby satisfying the elements necessary for copyright protection under 17 U.S.C. § 102. Carell will

likely serve as an important precedent for Paramount Pictures and CBS, who filed a complaint in December 2015 claiming copyright infringement against Axanar, a Star Trek fan film. The complaint, Complaint, Paramount Pictures Co. v. Axanar Prod. Inc., No. 2:15-cv-09938-RGK-E (C.D.C.A. Dec. 29, 2015), alleges a wide variety of violations, ranging from copyright infringement of plot points to characters to cosmetic details. The complaint includes claims that Axanar infringed “Klingon’s spiky makeup and the Vulcans’ pointy ears and eyebrows.” Because each claim of infringement must be considered individually, the court should examine individual characters’ makeup separately not only from each other but also separate from the plot points and use of phrases such as “beam me up.”  According to Carell, this original makeup, fixed in countless movies and television episodes, may also receive copyright protection. It is now up to the court to determine whether Axanar infringed on these distinctive character features.

The creative use of makeup may also garner IP protection under Trademark Law. When stage makeup is distinctive enough and used to identify a source, such as the black and white geometric full face makeup of the band KISS, it may be trademarked under the Lanham Act. While copyright protects original works of authorship, trademark protects distinctive pictures, words, or symbols used by businesses to identify goods or services in commercial activity. Registering a makeup design with the Patent and Trademark Office is uncommon, with the band KISS being the first to register a makeup-related trademark and subsequently holding most of the makeup registrations according to IPelton. Initially, the USPTO denied KISS’s application. However, the band’s lawyer, Raymond E. Scott, was able to persuade the trademark office to allow protection for the band’s makeup by proving that the distinctive makeup was more recognizable than the actual band members. To accomplish this, Scott “actually had somebody sit in for Peter Criss, the drummer, and wear the same make-up and nobody knew” the difference.

While extremely unique and time/labor intensive stage makeup may be protected by both copyright and trademark law, everyday makeup cannot be a source identifier protected by trademark law and lacks sufficient originality for copyright law. Everyday makeup may even be considered scènes à faire — an element of a creative work that is not protected under copyright law because it is customary to the genre (for example, a spy movie is expected to contain secret gadgets hidden in watches). So where on the spectrum from everyday makeup to the unique character makeup does the blurry line of copyright protection lie? Like everyday makeup, high fashion or ‘special day’ makeup — i.e. wedding, prom, red carpet, or any time a limo is involved — will not receive copyright protection. While it is customary for wedding or fashion photographers to credit makeup artists in their portfolios or magazines, it is unnecessary in the eyes of the law. The photographer retains full copyright of the finished photograph and the makeup artist has no legal recourse nor inherent right to use the photograph in their own portfolio. One way to avoid any confusion is for makeup artists to have a contract with the photographer setting out what is expected of both parties. Expectations may include the specific rights of each party, who will be credited for what, and where and how each party will receive credit.

The most recent question to arise in the realm of makeup art is whether a makeup artist can copy an avant garde artist’s dramatic facial implants without plagiarizing the original artist’s work. On January 6, 2016, c

ontemporary French artist Orlan requested subpoenas in Manhattan federal court intending to depose the creative team, including makeup artist Billy Brasfield, behind Lady Gaga’s video for “Born This Way.” The 2011 “Born This Way” video features Lady Gaga dancing around sporting what the media called “bizarre flesh-colored facial horns” accentuating her cheekbones and forehead. While Gaga’s face in the video seemed shocking to the American media, those in the French art scene familiar with Orlan saw the video and body modification as reminiscent of Orlan’s “Carnal Art” from a quarter century before. From 1990 to 1995, the French artist underwent nine plastic surgeries, altering her face and body with implants and documenting the process. Additionally, at one point during Gaga’s video, her head is placed on Plexiglas surrounded by equally made up plastic decapitated heads, an apparent  nod (or ripoff) of Orlan’s 1996 work “Woman With Head.” Orlan and her team waited two years to bring the plagiarism suit against Gaga and her creative team for $31.7 million, originally filing suit in 2013 in Paris. Now, after almost three additional years, Orlan transferred the case to New York.

With so many potentially infringing images in Lady Gaga’s video, it is unclear whether Gaga’s prosthetic makeup will be held as infringing upon Orlan’s plastic surgeries or whether that issue will ever even come to a head. Even though Carell held that makeup is protectable under copyright law, the landscape of makeup art and copyright law is still relatively undeveloped. If cases such as Orlan and  Axanar proceed to trial, they could help brighten the line and provide guidance in the future for the legal protection of makeup art.

Selected Sources:

• 17 U.S.C. § 102.
• Lanham Act, 15 U.S.C. §§ 1051 et seq. (1946).
• Carell v. Shubert, 104 F.Supp.2d 236 (S.D.N.Y. 2000).
• Non-Traditional Trademarks: Makeup used by KISS band members, EMP&A Blog (Mar. 21, 2012), http://www.erikpelton.com/2012/03/21/non-traditional-trademarks-makeup/.
• Abby Ham, KISS’ Attorney, Raymond E. Scott on Trademarking the Makeup, Kiss Assylum  (June 2, 2012) http://www.kissasylum.com/news/2012/06/02/kiss-attorney-raymond-e-scott-trademarking-makeup/.
• Devan Coggan, Star Trek Fan Film Accused of Copyright Infringement, Entertainment Weekly (Mar. 14, 2016) http://www.ew.com/article/2016/03/14/star-trek-fan-film-copyright-lawsuit.
• Mallika Rao, Lady Gaga Sued By French Artist Orlan For $31.7 Million, Huffington Post (June 18, 2013), http://www.huffingtonpost.com/2013/06/18/lady-gaga-sued-by-french-artist_n_3460710.html.
• Lorena Munoz-Alonso, French Artist Orlan Takes $31.7 Million Lawsuit Against Lady Gaga to New York, Artnet (Jan. 8, 2016), https://news.artnet.com/people/orlan-lawsuit-lady-gaga-new-york-403937.

*About the Author: Samantha Elie (J.D Candidate 2017) is a legal intern with Center for Art Law and a student at the Benjamin N. Cardozo School of Law. She may be reached at selie@law.cardozo.yu.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.