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Photos on Instagram prompt liquid lip artist to take action

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

While many people appreciate good art, unfortunately, not everyone recognizes that the time and energy that goes into creating these works of art should be compensated. This can lead to the unlawful use of said artwork, or the creation and use of other pieces that are virtually copies, without a licensing agreement. If you find yourself in this situation you may have legal options. One makeup artist recently took action against Kylie Jenner because of photos the founder of Kylie's Cosmetics, used to advertise her makeup line on Instagram.

According to the makeup artist-who is specifically known for liquid lip art-Jenner twice posted images used to advertise her makeup line, on Instagram, that were copies of works she had previously created.

The makeup artist used Instagram to respond, pointing out the alleged infringement and threatening to file a lawsuit for copyright infringement. Ultimately, Jenner responded by posting attributing the original images to the makeup artist in new Instagram posts. It is unclear whether the makeup artist received any compensation for the use of the images. No lawsuit was ever filed.

How A Federally Registered Copyright Might Have Changed The Outcome

While being recognized on social media by someone who has as many followers as Jenner does, provides great publicity, the fact that the makeup artist in this situation had not secured a federally registered copyright on those works may have influenced her decision to not file a lawsuit. Though it is possible to recover profits and actual damages for copyright infringement when works have not been registered, it is generally not an easy task. Under the Copyright Act, when an artist has registered infringed works, statutory damages may be available. Those statutory damages could reach as high as $150,000 per work.

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