Make-up: a copyright affair – Argentina says YES!

At the moment I am teaching my students copyright: the subject matter of protection. One of the big issues and moot questions we cover are tattoos, graffiti, make-up, an ice sculpture and the likes.

Today I was reading an interesting case decided in Argentina back in November 2017 which covers whether make-up is subject matter of protection. Is make-up a painting? In the UK a make-up is not copyright protected. According to the Merchandising Corporation of America Inc. and Others v Harpbond Ltd and Others case, make-up does NOT fit into the dictionary as a painting and, painting: must be on a surface – ‘a face is NOT a surface’. But these does not fit in our era anymore, does it? Is skin a surface? For example, exactly a year ago the BBC reported ‘The man who sold his back to an art dealer’ – the man’s back tattoo was designed by a famous artist and it was sold to a German art collector. So, in this case can we agreed that [whether we like it or not] skin was treated as a canvas/surface. Moreover, if we go over the issue of fixation which is a requirement under UK law, tattoos are meant to be permanent, although they can be removed by laser but in any case a painting in a canvas can also be removed and or deteriorated.

before and after the decision?

In Argentina, Law No. 11.723 of September 28, 1933, on Legal Intellectual Property Regime (Copyright Law, as amended up to Law No. 26.570 of November 25, 2009), Article 1 protects “… scientific, literary and artistic works shall comprise writings of all types and scope, and include source and object computer programs; compilations of data or other materials; dramatic works, musical compositions and dramatic-musical works; cinematographic, choreographic and pantomime works; works of drawing, painting, sculpture and architecture; models and works of art or science applied to trade or industry; printed matter, plans and maps; plastics, photographs, recordings and phonograms; and finally any scientific, literary, artistic or didactic production, irrespective of its reproduction procedure”. It continues “Copyright protection shall cover the expression of ideas, procedures, methods of operation and mathematical concepts, but not those ideas, procedures, methods and concepts per se.”

The Argentinean case – Background
A make-up artist was invited by a designer to participate in a production of photographs of models for the Magazine "N". The make-up artist paid actually to the magazine for her participation. She was then invited to the designer’s fashion show (Buenos Aires Alta Moda). To her surprise the catalogue handed on the night contained three of the photos in which she put make-up on the photographed model. And guess what…the name given to the make-up artist was not hers.
She brought a case due to copyright infringement, both economic rights and moral rights. In the first instance, the court dismissed the claim on the grounds that there was no "artistic work".
The appeal
The judgment of second instance, CAMARA CIVIL - SALA J (Civil Chamber), revoked the previous sentence. It established that the first instance court examined the make-up was not ‘a true artistic expression that deserved protection in light of what is regulated by law 11,723, a circumstance’. The ruling stated that the make-up applied to the models was not a work, but only an idea. Therefore, it is not an ‘intellectual creation’ and as such does not enjoy legal protection. In other words, the work was not ‘original’.
The second instance court, understood the contrary. The creator of the make-up and its work was a ‘meritorious activity’ and so worthy of protection. It sanctioned the defendant $100,000: 50, 000 for moral rights (paternity right) and 50,000 for economic rights.
To learn -still a moot question
The subject matter of protection is any work of the mind. In the EU, originality is to be understood as ‘intellectual creation’ (Infopak), involving ‘creative freedom’, a ‘personal touch’ (Painer) and ‘free and creative choices’ (Football Dataco). [see Elanora Rosati].
The issue that can come forward when covering make-up would be the issue of fixation; but does fixation mean to be permanent? When covering artistic works actually the national legislation in the UK does not mentions fixation, so it appears to be implied. And talking about fixation, well... what about broadcast: the most intangible of all forms of IP!

Source here and here.