Samantha Melhado is a 3L J.D. Candidate at Osgoode Hall Law School, enrolled in Professor David Vaver’s 2021-2022 Intellectual Property Law & Technology Intensive Program. As part of the course requirements, students were asked to write a blog on a topic of their choice.
Beep! Beep! Beep! The sound of your alarm marks the start to your day. As you resist the urge to snooze, it is likely you are about to effortlessly unlock your phone with the help of facial recognition technology. Whether you prefer to meditate or perhaps kickstart the morning with a workout, your favourite playlist is at your fingertips.
In a digitally dominant era, consumers rarely hesitate to use their faces as keys to unlock the online world. The use of interactive face filters on social media platforms complements this integration of face detecting technology into our daily lives. When capturing a photo, users on apps such as Snapchat or Instagram may select from a variety of face filters– “mask-like augmented reality that adds virtual objects to an individual’s face.” Adding a pair of bunny ears or retro sunglasses to your picture sounds harmless, right? What if that filter features a makeup artist’s work? With tech becoming ever more sophisticated, users can now opt to express themselves with filters that seamlessly blend vibrant eyeshadow or sparkly lipstick designs (among many others!) to their face.
Flashing back to 2016, only a year after Snapchat first launched its filters (more commonly referred to then as “Lenses”), the app introduced a design closely resembling, if not an exact replica of the rainbow teary-eyed makeup look by artist Mykie. At the time, Mykie filed a complaint through the app and in Snapchat’s view the filter did not infringe any copyrights. While you may debate whether the filter deviated from Mykie’s design so as to count as a new work (lacking a degree of substantial reproduction) – we must first question, are makeup designs captured by copyright protection? Spoiler alert, it depends.
Let’s dive into the copyright landscape to further explore this subject.
According to s. 5(1) of the Copyright Act, copyrights subsist in artistic works such as photographs or paintings. But, as stated in CCH Canadian Ltd v Law Society of Upper Canada , in order to receive copyright protection, a work must be “original,” i.e., the result of the exercise of skill and judgment, “in a manner that is not so trivial that it could be characterized as a purely mechanical exercise.”[1] And only expression, not an idea, is protectable. Osgoode’s own Professor Carys Craig notes, “if a particular look is part of the common stock of ideas in the makeup industry, like winged eyeliner or smokey eye shadow, it will not be protected as intellectual property.” Your everyday cat-eye look might not attract copyright protection, but how about when the design is closer to that of stage makeup? This area of law has yet to be extensively litigated in Canada, however our international counterparts have grappled with the intersection of facial makeup and copyrights with varying degrees of fixation required.
It is crucial to flag that copyrights extend to the expression of an idea, having a “more or less permanent form.”[2] In Merchandising Corporation of America Inc v Harpbond Ltd, a 1983 UK case, makeup was found to be outside the scope of copyright protection, as one commentator put it, the makeup on musician Adam Ant’s face, “was not fixed in a tangible medium and could be washed off.”
The Compendium of U.S. Copyright Office Practices notes, “the Office may communicate with the applicant or may refuse registration if the work or the medium of expression only exists for a transitory period of time.”[3] Unlike tattoos (which have their own set of copyright obstacles), makeup when met with water, vanishes. However, the ephemeral nature of a work does not bar copyright protection. For example, a sand sculpture that is then washed away by tides or a wedding cake later eaten by guests is within the ambit of copyrightable subject matter. [4]
The face – as an alternative medium – must not serve as an impediment to an artist’s access to protection. Social media platforms ought to think twice between reproducing a makeup artist’s work without consent. Whether your canvas of choice is paper or skin, copyright protection prioritizes the originality of the art, as the work moves out of the common stock of ideas and into the pool of intricate facial illustrations. Consider the skill required to perfect the detail and imagery in Natascha Pedersen’s design in honour of National Greenland Day. As a painter using acrylics, a makeup artist is similarly armed with a brush full of beautiful colourful powders.
[1] at para 16.
[2] Canadian Admiral Corp v Rediffusion Inc., [1954] 20 C.P.R. 75, para 28.
[3] at p 3.
[4] Islestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473 (Ch) at para 48.
