Guidance for Navigating Issues in IP Law: Hair and Makeup, Tattoos, and Fashion | Event Recaps | All MKC Content | ANA
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Guidance for Navigating Issues in IP Law: Hair and Makeup, Tattoos, and Fashion

Masters of Advertising Law Conference attendees: Scroll down for CLE materials

During a session at the ANA's 2023 Masters of Advertising Law Conference, attendees heard tips on negotiating issues in intellectual property delivered by Brian Murphy, partner at Frankfurt Kurnit Klein & Selz PC.

Key Takeaways

Hair and Makeup

  • Typical hair and makeup are not likely to raise real-world copyright issues; however, for extraordinary designs, copyright protection may be possible. Even if the makeup or hair cannot itself be considered "fixed" for the purposes of copyright law, a photo of the design can be sufficient to impart this property.
  • In rare cases, the right of publicity and trademarks may be applicable.
  • Remember, you can ask the makeup artist to sign an agreement with assignment/license provisions, warranties, indemnities, etc.

Tattoos

Try to obtain a release from people sporting tattoos in your advertising, or try to avoid featuring or focusing on the tattoo to try to qualify for de minimis.

If you will feature the tattoo, consider obtaining a license from the copyright owner(s). Also consider:

  • Does the design implicate trademark rights?
  • Does the design implicate additional copyright rights?
  • Will your usage implicate right of publicity issues.
  • How strong is the implied license argument?
  • Can you rely on fair use for advertising use?

Fashion and Jewelry

  • Basic, common shapes and patterns are not protectable and generally can be used.
  • More elaborate or unique prints or cuts may be protectable if they are separable from their function as clothing.
  • Consider whether the clothing acts as a source indicator and, if so, if a license is needed.
  • For jewelry, consider, is the selection and arrangement of elements numerous and original enough for protection?

CLE Materials

Source

"Your Makeup Is Terrible": What Drag Queens Can Teach Advertising Lawyers About IP Protection." Brian Murphy, partner at Frankfurt Kurnit Klein & Selz PC. 2023 ANA Masters of Advertising Law Conference, 11/17/23.

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