Jane Tullis
Image Courtesy of Pat McGrath Studios and Glamour Magazine[1]
Celebrated makeup artist Pat McGrath broke ground once again when her "porcelain skin" makeup debuted in the Maison Margiela show during Paris Fashion Week. Despite years of experience in the industry, McGrath was still mislabeled as a newcomer by netizens, diminishing her impact and illustrious career. This follows Forbes’s snub of the mogul in 2018, when they incorrectly claimed Kylie Jenner was the first “self-made” billionaire. Because makeup application innovation falls outside of traditional realms of IP, Dame McGrath has no legal pathway to securing credit, doctrinally known as the right of attribution, in any effort to defend her work and legacy. By establishing an independent right of attribution, creators like McGrath can better protect their bodies of work, impact on a field, and overall legacy, especially in an increasingly virtual landscape.
In simple terms, the right of attribution is typically a statutory protection that ensures an author is identified alongside her work.[2] This right is typically included within a swath of protections known as “moral rights,” a specific category of legal protections attached to protecting the interests of the author. However, while a mainstay in foreign copyright schemes, moral rights have been significantly restricted in the United States. They are currently only protected statutorily in the Visual Artists Rights Act, which only extends this right to enumerated categories of visual works.[3] Makeup is not currently included in this list. Furthermore, the international adoption of the TRIPs Agreement undercut moral rights provisions in a previous such treaty, the Berne Convention.[4] As such, the right of attribution is technically present in the American copyright framework, but in practice, the right has been significantly cabined both here and abroad.
Furthermore, the right of attribution currently only exists for copyrightable works, when at all. Makeup concepts and application strategies, however unique, rarely meet the American standards of copyrightability.[5] The Southern District Court of New York did determine that the makeup looks for the Broadway production of Cats were copyrightable.[6] However, their analysis partially hinged on the “mechanical or rote transcription” of the looks for continuous performances.[7] In contrast, runway makeup looks are intentionally created for only one show. While there is no case precedent, the transient nature of couture and editorial makeup looks might not fulfill the requirement of fixation for US copyrightability.[8] By tying the right of attribution to copyrightability, creative makeup looks that might meet the originality and tangibility requirements of copyright may still not be deemed copyrightable and thusly protectable.
By establishing a unique attribution right with eligibility requirements distinct from copyrightability, makeup artists and other similar creators will be more readily able to assert their legacy and ownership over their works even if they fall outside of the specific parameters of American copyrightability. Furthermore, this update would modernize the American intellectual property framework by recognizing the increasing creativity of various artistic mediums. Dame McGrath’s groundbreaking looks are a far cry from the first documented use of kohl eyeliner dating back to 10,000 BC.[9] As the variety and creativity of artistic mediums increases, this independent right of attribution would better support artists who fall outside of the current copyright framework.
There are several relevant policy considerations attached to the creation of such a right, including how to determine eligibility requirements, what forms of attribution would be required, and which enforcement mechanisms would be most effective. These questions could each occupy significant scholarship on their own. However, these questions are not impossible to answer, and the benefits of an independent right to attribution still hold significant potential. This protection would be a key step in updating the intellectual property system to reflect emerging artistic mediums and to ensure artists are protected in such a system.
[1]Photograph of models from Maison Margiela Spring-Summer 2024 Haute Couture show, in Ariana Yaptangco, Pat McGrath Turned Models into Porcelain Dolls on the Maison Margiela Runway, Glamour (Jan. 26, 2024), https://www.glamour.com/story/pat-mcgrath-maison-margiela-beauty [No Permalink] [https://web.archive.org/web/20240229025510/https://www.glamour.com/story/pat-mcgrath-maison-margiela-beauty].
[2] Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8D.03 (rev. ed. 2013)
[3] 17 U.S.C. § 106(a)
[4] Monica Kilian, Hollow Victory for the Common Law? Trips and the Moral Rights Exclusion, 2 J. Marshall Rev. Intell. Prop. L. 321 (2003), https://repository.law.uic.edu/cgi/viewcontent.cgi?article=1034&context=ripl [No Permalink] [https://web.archive.org/web/20240229032807/https://repository.law.uic.edu/cgi/viewcontent.cgi?article=1034&context=ripl].
[5] See generally Preetha Chakrabarti & Siri Rao, Copycat-eye? Copyright Protection in the Beauty Industry, FashionUnited (Jan. 3, 2019), https://fashionunited.com/news/business/copycat-eye-copyright-protection-in-the-beauty-industry/2019010325367 [https://perma.cc/E3X6-AV8U] [https://web.archive.org/web/20240229033101/https://fashionunited.com/news/business/copycat-eye-copyright-protection-in-the-beauty-industry/2019010325367] (providing an overview of the copyrightability, or lack thereof, of makeup looks].
[6] Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236, 247 (S.D.N.Y. 2000).
[7] Id. (citing Andrien v. S. Ocean Cnty. Chamber of Com., 927 F.2d 132, 135 (3d Cir. 1991)).
[8] See 17 U.S.C. § 102.
[9] Isabel Dexter & Suzanne Scott, The Power of Eyeliner: The Strokes That Show Who You Are, Shiseido (Aug. 21, 2019), https://www.shiseido.co.uk/gb/en/ginza-edit_the-power-of-eyeliner.html [https://perma.cc/A9MW-5VPQ] [https://web.archive.org/web/20240229043223/https://www.shiseido.co.uk/gb/en/ginza-edit_the-power-of-eyeliner.html].