We don’t refer to makeup artists as “artists” for nothing. They truly are artists, whose palettes are the almost unlimited types of makeup products, whose canvases are faces, and whose designs as a whole are usually original to them. (I know this because I have several beauty influencers as clients).
Over the past several years, there’s been a lot of disagreement about whether makeup art is copyrightable. This is primarily because of the frequent copycat beauty looks that are not credited to the original creator/artist.
First, a little necessary background. A work of art is copyrightable if it’s an “original work of authorship fixed in a tangible medium of expression”.
The copyrightability of original makeup designs first came up several years ago, when a court ruled that the stage makeup featured in the Broadway musical “Cats” was protectable under copyright law. This was because even though the actors removed it after each day’s performances, and actors in the show could change, the makeup was intended to be, and as much as possible was, applied in the same way for each performance.
And just last year, a federal court stated that a makeup artist’s work is “essentially a painting that is displayed on a person’s face”.
Then why is there disagreement on this? Because unlike a painting, a makeup design isn’t permanent. It can be washed off. Music, traditional artwork, photography, and other types of creative works are pretty much permanently “fixed”. Since a makeup design isn’t permanent, does it mean that it can’t be “fixed”?
How can a makeup artist protect their valuable original makeup designs from being copied, without permission or acknowledgement they created it?
I think the way to do it is by fixing it in that “tangible media of expression” another way. Create a drawing of the makeup artistry on paper prior to applying the makeup. Or take a photograph of the design once its applied to the lucky face. (By the way, if it’s a photo, the artist needs to get written permission from the person wearing the makeup design that the artist owns the picture).
The artist can then apply for copyright registration based on the drawing or photograph – both undisputed “tangible mediums of expression”. (As I’ve written before one doesn’t need a lawyer to file a copyright registration application. It’s designed for non-lawyers, easy, quick (takes about 20 minutes), and inexpensive (usually $65.00).
There’s no reason a makeup artist needs to lose face (art control and ownership). They can register their work for copyright, so they can protect and enforce their rights. Just Sayin’ …™