By now, the Kardashian clan is most certainly used to being the subject of copyright infringement claims, seeing as the reality TV-made stars have their hands in just about any product empire you can think of: from cosmetics to diet pills, clothing lines and cars, the Kardashian sisters are no strangers to copyright law litigation.
Now, one of the most of-the-moment sisters is being challenged in court. Kylie Jenner’s new cosmetics line, Kylie Cosmetics, has already been the subject of several lawsuits, but the latest focuses on a supposedly intentional ripping-off of an artist’s work. According to visual artist Vlada Haggerty, a Los Angeles-based creator who also dabbles in makeup artistry, Kylie Cosmetics appropriated one of her images for its own social media campaign.
While the two images aren’t exact, they are quite close. Haggerty’s image of a pair of hands covering a model’s eyes, the fingernails painted gold with gold dripping off the subject’s fingers, perfectly encase a pair of parted red lips. Jenner’s image is almost identical: though the shades of the nails and lips vary slightly, it’s indisputable that the images create confusion regarding their original maker.
While it’s certainly true that artists are often inspired by one another, there is a line that’s been drawn to outline what constitutes copying and what doesn’t. Even so, those lines aren’t always clear – which is why its necessary to have a grip on copyright law if you intend to borrow and get inspired by other artists.
In any event, the fact that a woman who is a millionaire many times over is “borrowing” from an artist who is still trying to make it is infuriating, and Haggerty is claiming she will proceed with legal action against Jenner. In the event that she does, could she win?
Copyright, Images, and Infringement
Copyright law was designed to give certain rights to the creators of artistic works while ensuring the creative expression frees freely within the public realm. It encourages creative expression by ensuring that only creators can benefit from the sale or reproduction of their work.
Notably, copyright law protects the expression of ideas. Meaning that, an unexecuted idea that remains in your head or within a conversation between friends has no protection under copyright law. In order to be afforded copyright protection, creative works must be original works of authorship, fixed in a tangible medium, with a minimal degree of creativity. Copyright law defines a ‘creative work’ as literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, and sound recordings.
Additionally, copyright protection is assigned the moment the work is created – for example, if you write a poem on a napkin in a restaurant, that poem is automatically protected by copyright. While it’s always helpful to register your work with the Copyright Office, it’s definitely not necessary in order to be afforded the protection.
As a creator, U.S. Copyright Law affords you certain exclusive rights regarding your creative product. Only the copyright holder has the power to:
- reproduce (i.e., make copies of) the work;
- create derivative works based on the work (i.e., to alter, remix, or build upon the work);
- distribute copies of the work; or
- publicly display the work.
If we look at Haggerty’s case, then, we’re going to focus specifically on derivative works, since that’s what’s in question here.
Derivative Works: What’s Cool, and What’s Not
A derivative work is a work based on or derived from one or more already existing works. In other words, a derivative work is a work that appears to be based on someone else’s creation. The most common examples of a derivative work would be a new version of literary material – for example, a novel adapted for film or a play; a translation of a novel into another language; a sculpture based on a drawing, or a drawing based on a photograph. In order to create a derivative work, you need to have express permission from the original creator, who owns the original copyright.
Copyright law also recognizes art reproduction as a derivative work, which is what we’re dealing with here. When you view Jenner’s and Haggerty’s images side-by-side, there’s no question that the two photographs are almost identical, save for the shades of gold and red. In order for a derivative work to satisfy copyright law’s requirement of originality on its own (and thereby be clear of potential infringement claims), the latter work must contain sufficient new expression, over and above that embodied in the earlier work. And that’s exactly where things might start to get a little tricky.
You see, whether or not a work is derivative to the extent that it violates copyright law is an extremely subjective call to make. Take, for example, an artist we’ve discussed at length here on Art Law Journal. Infamous appropriation artist Richard Prince has made a sizeable living creating works that are based on another artist’s work. In a lawsuit against by artist Patrick Cariou, a court found that his alteration of Cariou’s images – which consisted of merely drawing over Cariou’s images, was considered fair use. Let’s discuss.
Fair Use Images: Where Do You Draw the Line?
We know that copyright infringement occurs when an individual creates a derivative work from copyrighted material without express permission from the creator of the work. But there are exceptions that would shield an infringer from liability, and allow the infringer to use the work without express permission and without being liable for any damages.
The fair use doctrine is outlined by U.S. copyright laws, and the U.S. Copyright Office has even created a Fair Use Index of the overwhelming case law on the subject. Courts tend to measure fair use by these four prongs:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
In the case of Richard Prince, for example, a court decided using the images was fair use because they had an artistic value to them. Prince’s expression or commentary on Cariou’s photographs built upon and shifted the Cariou’s original intention, and therefore was creative enough to be considered a fair use image.
On the other hand, it appears that Jenner’s derivative work was created solely for commercial purposes – Jenner used the image on social media, no doubt a means of advertising her cosmetics line as Jenner has millions upon millions of followers on Instagram. As such, it’s unlikely that a court would find Jenner’s work to be considered fair use.
Even so, proving that Jenner’s work was a derivative of Haggerty’s won’t be easy like we discussed here on Art Law Journal regarding the artist Cecily Brown. In order to prevail on a suit in copyright infringement, a copyright owner must show (1) access to the plaintiff’s work and (2) probative similarities between the works. If one can present this evidence and demonstrate that it’s more likely than not that the work was copied, then a claim for copyright infringement will likely prevail.
Access can be proven through evidence that the defendant had a reasonable opportunity to observe the plaintiff’s work, which in this case Haggerty can easily argue that Jenner’s team found the image on Instagram. Plus, that evidence doesn’t need to be overly specific or concrete – Haggerty doesn’t need to show that the infringer actually viewed the work, particularly if it was widely disseminated or particularly famous. Additionally, Haggerty will have to prove that there are elements in the work sufficiently similar to warrant a court to find that the work was copied.
Even so, art is inherently subjective, and artists borrow from each other all the time. So whether or not a court will find Jenner’s work as a fair use image or copyright infringement is something we just can’t guarantee – especially because Jenner’s legal team probably has a lot more resources than Haggerty’s.