Does intellectual property exist in the beauty community?

In 2015, the L.A. based make-up artist and photographer Vlada Haggerty posted an image to her Instagram that even those unfamiliar with the Instagram beauty community have likely come across in some capacity by now: a pair of molten gold lips dripping colour, mouth open and teeth slightly exposed. It would go on to become one of the artist’s signatures and one of the most copied editorial make-up images. Everyone from Kylie Jenner’s beauty label to LVHM’s Make Up For Ever and the fashion brand Guess seem to have knocked it off in different iterations, ranging from packaging to t-shirts. Haggerty has been both outspoken about these alleged infringements and fought back with lawsuits.

Haggerty‘s situation isn’t unique. When it comes to the copycat nature of certain creative industries, it’s hard to ignore the fact that legal protections don’t exist. Of course, there have been several huge conversations about intellectual property in fashion (The Fashion Law has become a go-to for the literal trials and tribulations of designer labels both big and small) and the Instagram account Diet Prada serves as a leading voice of the generation, calling out copycats left and right. But it’s not too often that you hear of a make-up artist suing for copyright infringement.

Imitations of her own highly specific works of art is something Mimi Choi, a Vancouver-based make-up artist, has been thinking about a lot lately. With nearly a million followers, Choi’s distinctly visual fantasy op-art make-up became well-known several years ago before the trend exploded. Think paintings that make her own face resemble a collage with eight eyes and three noses, or shadowing techniques that lend themselves to the depth and darkness of surreal illusions.

“I feel so fortunate that my work has spread around the world and that the style and genre I've helped popularise is gaining more attention every day,” says Choi. “Many artists have recreated my looks and while it's nice to receive credit, I don't expect it and am just happy that I am able to inspire someone. However, there have been a couple of instances when I've questioned the intent of an artist. The first example is with an illusion artist who has gained a large following on social media. Before she made a name for herself, she used to follow me on Instagram and even credited me several times whenever she would recreate my looks – particularly my iconic multiple eye illusions. After gaining popularity, however, I realised that she had unfollowed me and removed the credit that she had once given me from her past posts. She had continued to recreate my early work that was buried in my feed which I believe was an attempt to hide the fact that she was using my art as a reference. I decided to confront her a few months ago by sending her an email and since then, she has stopped recreating my work.”

Choi also recalls the time her own followers alerted her to a relatively new make-up artist who seemed to be copying her work without crediting her. Because the make-up artist had blocked her, there was no way for Choi to communicate with her, despite her own followers commenting on Instagram and calling her out, something far from uncommon in the beauty community on Instagram.

Copycat beauty looks are a phenomenon that stretches far beyond the wave of make-up artists on Instagram, however. Earlier this year, Peter Philips, make-up artist and creative image director of Christian Dior Beauty, told me about his own masterpiece that many make-up artists in the industry replicated: the Swarovski crystal-rimmed eyes at the Dries Van Noten Spring 2018 show. “What drives me is the creative process and trying to do different things than other people do,” he said. “I do respect the skills of people [re]doing my make-up, but on the other hand, I feel you miss out on something because doing our job is not only about repeating and what’s been done. That could be a starting point to push it further — that’s just the fun of it.”

Similarly, make-up artist Sammy Mourabit is all too familiar with the lack of protection for make-up artists in the industry. “The worst encounter I had with this side of the industry was in 2013,” he recalls. “I was the sole make-up artist on a photo shoot. The photographer and another make-up artist then proceeded to take photos from that shoot featuring my unique artistry to launch their own collection of make-up, named after themselves. The images were used on their packaging and all their promotional materials. They neither credited me nor compensated me in any way.”

Even the tech world seems to be taking works of art directly from make-up artists without crediting them. Snapchat made headlines two years ago when it released a new batch of face-altering filters that seemed to be inspired directly by the creations of independent make-up artists. These filters weren’t just copies of simple beauty looks, they were exact replicas of intricate works of art, clearly plucked directly from these make-up artists’ feeds. More recently Diet Prada called out two editorial beauty looks worn by Rihanna in which it seemed that two different make-up artists and creative teams ripped off distinctive looks from their peers. It seems the silver glitter coated lids, lips and tongue by Yamin for i-D in 2014 was directly appropriated for an Allure story.

Does the industry consider make-up artists on the same level as photographers or designers? Perhaps it’s impossible to create intellectual property or patent standards for something so closely linked to the body – which make-up artists, hair stylists and nail techs use as their canvas. After all, make-up disappears and washes off instantly whereas clothing, artwork or even photography is long lasting. Semi-permanence is part of the beauty of make-up – it allows us to become whoever we want to be. But is the ever-changing nature of beauty in flux the very thing which prevents copycats from owning up?

"Tattoo and make-up artists do not fit squarely into the art world’s business model, nor do they fit squarely into U.S. copyright law" - Michelle Wodynski,

According to Michelle Wodynski, a lawyer who specialises in intellectual property and copyright for international businesses, “tattoo and make-up artists do not fit squarely into the art world’s business model, nor do they fit squarely into U.S. copyright law. Everyday hair and make-up, generic tattoos, and nail art would likely not be sufficiently original to qualify for copyright protection. The artwork done by a tattoo and make-up artist would have to meet the definition of “sufficient originality” first to be considered copyrightable. U.S. law has determined that certain intricate tattoos and stage make-up, think, Cats on Broadway, qualify under this test.”

That means that it’s nearly impossible to get legal protection as a make-up artist, whereas photographers and artists have more rights. If that wasn’t bad enough, make-up artists also find themselves in breach of copyright law when sharing their own work. Ruth Carter, another lawyer familiar with copyright also adds, “One thing I've run into while working with photographers, is make-up artists who do a model’s make-up, and then use images from the shoot without permission. The photographer who took the photos is usually the copyright holder of those images, so the make-up artist needs the photographer's permission to use the images in the make-up artist’s portfolio.”

According to Wodynski, UK law “is similar as far as the requirement of originality but differs as to their view on the affixing and permanence requirement for tattoos and intricate make-up. The discussion of permanence boils down to the fact that tattoos can fade or be removed by lasers and make-up is temporary such that the rule on affixing and permanence cannot be met.” Since the work of art is created on a human, which walks around and has a life unlike a painting, sculpture or photograph, copyright protection is extremely complicated. One thing make-up artists can try to do is to get a written release ahead of time. “Absent a release signed by the original artist, the issue as to who owns the rights to the copyright affixed to a human being gets murky,” explains Wodynski.

Aside from make-up artists attempting to seek protection through written-releases, Wodynski explains that the laws for this are still very much underdeveloped and in flux. Christy S. Foley, another lawyer familiar with creative copyright, explains that “there was a US court case, decided in 2017 by the Supreme Court, which said that, under some circumstances, aesthetic designs can be copyrighted if they’re separate from a useful article. Basically, this means that the design itself has to be a unique pictorial or graphic work and must be able to be separated from the article’s practical use.  In the case of hair, it’s impossible to separate the hair from the hair design, so you can’t copyright a hairdo. Make-up artists or nail artists may have the ability to copyright a design that they draw on someone’s nails or face, but the design would have to be a specific pictorial or graphic work in and of itself.”

If make-up artists are creating work that is just as unique and valid as any other artist, shouldn’t they have more protection? “While I would love for there to be laws and legal implications to protect my artwork, I have to admit that I don’t give much thought to the issue,” says Choi. “I feel that the universe will reward those who are positive and do things the right way.”

Mourabit feels differently: “There absolutely needs to be more protection for make-up artists across the board. No one should ever have to see their work discredited or used to enrich others without fair compensation. This happens all too frequently in this industry, which is why I am suing for damages. I hope that it sets a precedent so that other artists don’t have their work stolen from them in the future. I strongly believe that a union should be organised.”