Abstract

In general terms, makeup artistry combines cosmetic skill to create and express original looks — ranging from simple everyday applications to extreme theatrical designs. While creating and performing makeup artistry requires considerable amounts of skill and creativity, current Indian copyright law does not expressly provide protection under Section 2(c) of the Copyright Act, 1957. The courts have not yet recognised makeup artistry as a protectable artistic work, thereby providing an incomplete legal remedy to makeup artists whose works are copied or used without attribution. To determine whether makeup artistry qualifies for copyright protection, this paper examines whether it satisfies the requirements of (i) originality; and (ii) fixation. The transient nature of makeup artistry should not, in itself, be a ground for excluding it from copyright protection. Several judicial decisions from the United States and Argentina have found makeup designs to be copyrightable subject matter. Indian courts ought likewise to interpret “artistic work” to include skilled and distinctive makeup artistry. The use of the human face as a medium of artistic expression should not attract lesser protection than a painting on paper.

I. Introduction

Recent years have seen a significant increase in the ways in which creative individuals express their artistry through beauty and cosmetics. Makeup artists invest considerable amounts of time, skill, and creativity in producing unique creations on the faces of their subjects; however, there is little legal protection available to them when someone photographs and reposts their work on social media, or recreates it without providing proper credit or seeking permission. This is the central concern which this paper seeks to address.

The Copyright Act, 1957 protects visual arts such as paintings, sculptures, drawings, and photographs as artistic works; however, it does not expressly mention makeup artistry as a protectable artistic work. This legislative gap creates an anomalous position in which a painting displayed in a gallery enjoys full legal protection, while an equally original work of art painted on the face of a person affords the artist no legal rights to prevent its unauthorised reproduction. The question of whether makeup artistry meets the criteria for protection as an artistic work for copyright purposes emerged as a subject of global debate around 2018.

In India, there remains considerable uncertainty regarding the copyright protection of cosmetic looks, as no judicial ruling has yet been issued on the point. Makeup artists continue to be at risk of having their works misappropriated through their unauthorised use in advertisements, republication on social media, and reproduction by others without credit or payment. Given this state of the law, a thorough doctrinal analysis is necessary to determine the current legal position and to identify the rights and entitlements available to makeup artists.