Presentation: Make-up Artistry and Copyright Protection

Veldkamp_Presentation_LAW422_IP

Hi everyone, please find my audioslide presentation attached to this post — I hope you will find it interesting! Here is a transcript of the presentation for easy referral later:

“Hello everyone, today I will be talking about Make-up Artistry and Copyright Protection. I think we can all agree that make-up artists are, as their title states, artists. But have we turned our minds to whether their work is an “artistic work” such that it should receive protection under the Copyright Act? Today I will be discussing some examples showing that at least some make-up application should attract copyright protection.

Per s. 5(1) of the Copyright Act, original artistic works receive copyright protection. The definition of “artistic work” in s. 2 includes both paintings and drawings, and one could argue that the application of cosmetic pigment is analogous to painting or drawing. Everyday use of make-up may not qualify as “an exercise of skill and judgment that is more than a purely mechanical exercise” per CCH Canadian, nor would it be sufficiently “original.” Where I think the conversation gets more interesting is in the realm of Avant Garde and Special Effects make-up, which tend not to be designed to enhance the subject but rather to use them as a canvas. For example, see Kicki Yang Zhang’s artistry here – should work such as hers attract copyright protection?

To discuss this I want to tell you about Frankenstein’s monster. You may be familiar with Mary Shelley’s original description, which says that the monster has black hair, white teeth, and tight yellow skin. However, it is the film version from the 1930s that is most prominent in pop culture. Makeup artist Jack Pierce came up with the iconic version of Frankenstein’s monster that we all know, with a green face, big forehead, scar, flat-topped head and bolts on his neck. And it is these five elements that constitute Universal Studio’s copyright in the make-up design. To be clear, they have not copyrighted the character of the monster, since the original book was published was in 1818 and has long been in the public domain – it is just the specific elements of the make-up. Here you can see Boris Karloff as Frankenstein in the original film, with all five elements present (though of course it was in black and white so you can’t see the green skin – apparently, the green skin was because that showed up better on black and white film!). On the right you can see Peter Boyle as the monster in “Young Frankenstein,” a 1974 parody of the Frankenstein story that managed to evoke the Boris Karloff monster without actually using all five elements, and thus avoided infringement. And yes, that film was in black and white as well, but that was on purpose and not due to technical restrictions!

You might be thinking, how is it possible to have copyright in make-up, since it is meant to be washed off and therefore can’t be “fixed”? In 2000, a New York court considered whether the make-up designed for the musical “Cats” attracted copyright protection, and concluded that it did. Although it washes off the actors faces, it represented an original expression of an idea, and being painted on an actor was sufficient to be considered “fixed.” The artist, Candace Carell, was ultimately barred from establishing ownership, but it was due to the statute of limitations rather than some element of her work. She was able to protect herself against a counterclaim and created a coloring book featuring her design.

Both examples I’ve discussed are very theatrical, character-driven instances where the make-up is done to enhance another performance, whether on film or on stage. However, this is not the only instance in which make-up artists might have copyright protection. Please note that for this example, I am relying on secondary sources as I cannot read the original case in Spanish and it is not available in English. In 2017, a court in Argentina awarded damages to a make-up artist who failed to receive proper credit. She had done the makeup on models for use in a magazine, but later discovered photos in a catalog where another person was given the credit. Initially her make-up was considered an “idea” which did not attract protection, but on appeal the court decided that there was a sufficient basis for her to receive damages both for economic and moral reasons. Morally, because her name was not attached to her work as it should have been, and economically, because it was used for a purpose beyond what she was paid for.

There is no caselaw in Canada on this point as of yet, but I think it would be interesting to see a Canadian court grapple with what make-up application should attract copyright protection. To me, it seems that “over-the-top” applications such as Frankenstein’s monster or the musical Cats would be easier to protect than a neutral make-up applied for a fashion show. Where do you think a Canadian court might draw the line in applying Theberge? In what circumstances does a just reward for a make-up artist start to outweigh the public interest in “the encouragement and dissemination of works of the arts and intellect”? Thank you for listening to this presentation.”