10 June 2020CopyrightRory O'Neill

Second Circuit sidesteps skin copyright debate

A make-up artist has lost his copyright appeal at a US federal appeals court, but the judges declined to issue a highly-anticipated judgment on whether the human skin is a “tangible medium of expression”.

In its decision, issued Monday, June 8, the US Court of Appeals for the Second Circuit said that Sammy Mourabit’s claims were ‘preempted’ by the US Copyright Act.

Make-up artist Mourabit had filed copyright infringement claims against photographer  Steven Klein, and Japanese skincare company  Shiseido at the New York State Supreme Court in 2018.

Mourabit was responsible for applying make-up at a Shiseido photoshoot, at which Klein was the photographer, to promote a new skincare line.

But Mourabit claims Shiseido did not credit him for his work and had misattributed the make-up to another artist.

Mourabit wanted his copyright claims heard in the New York state court, but the case was instead transferred to the federal District Court for the Southern District of New York.

That’s because Mourabit’s state law claims were so broad that they were ‘preempted’ by the federal Copyright Act, Shiseido argued.

The district court agreed, ruling that Mourabit’s claims were preempted by the Copyright Act because makeup artistry fits within the law’s “pictorial, graphic, and sculptural works” category and could be “fixed in a tangible medium of expression”.

Mourabit appealed to the Second Circuit, arguing that his work was “fixed” in the human skin, which could not qualify as a “tangible medium of expression”.

As a panel of three Second Circuit judges noted in Monday's ruling, the question of whether the skin is a “medium of expression” has “sparked a lively academic debate among copyright scholars”.

But the appeals court declined to issue a watershed opinion on the topic. It didn’t need to, the court ruled because Mourabit’s work was “fixed” in the photographs taken by Klein.

“Mourabit plainly consented to the photographing of his work by Klein: after all, creating such a photograph was the goal of the photoshoot,” the judges wrote.

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