TXPhotog wrote:
...

Which part of "Don't argue with me" don't you understand?

I have neither the time, energy, nor will to argue this fully with you.  Do you want to be right? Ok you're right.

I don't really care.

I shall just continue on in my delusions of understanding this kind of stuff.

Good day.

area291 wrote:
Wouldn't the "Cats" case go more toward trademark infringement and not copyright?

I quoted this from an article on one of the judge's rulings in the Cats case already.  But here it is again:

The parties did not dispute that the designs are protected by copyright. The court found that the designs were original and are fixed in tangible form when applied to the actors’ faces.

I am missing why we are arguing about whether bodypaint is copyrightable or not.  The copyright has already accepted registration of the make-up from Cats which suggests that it was copyrightable.

In the Cats case, the fact that it was copyrighted was undisputed, nor was the fact that it was copyrightable.

The judge also found that artwork became tangible when it was applied to the actors' faces.  So, at least in this case, the judge agreed with tangibility.

What James is contending is that nobody challenged any of those issues.  That is perhaps true.  The reason could be that nobody thought to challenge it, the other possibility is that all the parties in the case, as is indicated by the judge, conceded that bodypaint (or in this case face paint) designs are copyrightable.

James is right though, the issue has never been squarely ruled upon by an appellate court and therefore there is no legal precedent.  On the other hand, nobody has ever made, or aparently for that matter, even challenged the issue in Court.

BTW, a trademark might include copyrightable artwork such as a photograph so I see what you are getting at.  However, I don't think the could or did register the face paint as a trademark.  That was never an issue, but I suppose that a company could have a trademark designed around a bodypainted design.

area291 wrote:
Wouldn't the "Cats" case go more toward trademark infringement and not copyright?

No, there was no trademark at issue, and the makeup designs were registered with the copyright office (and a copyright issued) - not trademarks.

James Jackson wrote:
I shall just continue on in my delusions of understanding this kind of stuff.

Yes, I suppose you will.  And of course you are welcome to do, and believe, as you please.

It's true that on a forum we will never unambiguously answer the question of whether or not makeup is protected by copyright.  Only a Supreme Court decision on the issue would (more-or-less) decide it for sure, and that doesn't appear to be forthcoming.

But that's not the real issue we need to concern ourselves with.  The real issue is this:  Should a prudent photographer be concerned about risk from a copyright claim by a makeup artist when artistic designs are used in the shoot, and act to protect himself from that liability?

If you choose to take the position that makeup is not copyrightable, you would answer no to that question.  But given that the only known court case disagrees, and that the Copyright Office disagrees (in evidence whereof we have the registration given by the Copyright Office in the Cats case), to take that position and not protect yourself seems to me very imprudent.

Yes, it is possible that somewhere, some time, some court may rule differently.  But until and unless that happens, and it overturns the ruling now on the table, it would be very wise to act as though makeup could be protected by copyright.  To do otherwise is, to use your term, based on a delusion.

studio36uk wrote:

Mere payment does not meet the test of law to transfer a copyright interest from the MUA to you under the work for hire theory. There must be a written agreement concerning the copyright interest.

Mere payment does not make them an employee either for purposes of copyright law.

Your concept of what "work for hire" or "employment" is is not the same as what the law requires.

You are inviting problems for yourself down the road.

God, I am glad that in the UK they have abandoned the whole work for hire concept all together. It just is no longer even recognised at all except in the case of FACTUAL employees. An artist owns their work unless a written transfer of rights happens - full stop.

Studio36

REFS:

http://www.bitlaw.com/source/17usc/201.html

§201. Ownership of copyright
(a)
Initial ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.
(b)
Works made for hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
(c)
Contributions to collective works. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

-------

For a definition of Works Made for hire you must also see §101:

http://www.bitlaw.com/source/17usc/101.html

(2)
a work specially ordered or commissioned for use as a contribution to:

a collective work,
as a part of a motion picture or other audiovisual work,
as a translation,
as a supplementary work,
as a compilation,
as an instructional text,
as a test, as answer material for a test,
or as an atlas,

AND

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

AND

That agreement must be in place in advance - before the work [for hire] starts.

My note: It has been discussed before whether that "agreement" can be oral and then memorialised [repeated] in writing at a later point in time. That is possible, it seems, but the essence of the §101 requirement is that it must be an agreement in advance and it must ultimately be committed to a written form.

-------

For those who might want to consider using a written agreement here is one form of it that you can cut and paste - but consider that what you are doing is creating specifically a "collective work" and only that under the terms of §101 and §201 - but that is only implied here not spelled out, so even then your rights may be limited if a future challenge is mounted. Further, if you register works you may then still have to spell out the contributing authors relative contributions in a collective work.

http://copylaw.com/forms/Workhire.html    [form of agreement]

In my view it's better to use a different form of agreement that is more like a rights assignment; rights transfer; or license.

studio.. i know what your saying.. it was early and i wanted to get your blood boiling.. i know you are always posting about copyright laws.. and you are a good source of knowledge.. its all good.. altough the info is inviting..

thanks
ch

Chris Oakley wrote:
studio.. i know what your saying.. it was early and i wanted to get your blood boiling.. i know you are always posting about copyright laws.. and you are a good source of knowledge.. its all good.. altough the info is inviting..

thanks
chris

This is basically a photography related board... and I am fundamentally a photographer... but if I were a fine artist [painter or sculptor] I would probably be doing the same thing in that context. I have an interest in seeing that everyone that has rights to their creations has them protected if that is what they wish to do... or they get some other compensation, not limited to photographers alone of course.

What I do highly dislike is to leave, or see others leave, the legal elements unresolved when it is so really easy to deal with them before problems start.

Studio36

TXPhotog wrote:

James Jackson wrote:
The list is specific and exhaustive enough to specify where works need to be made in several examples, so I'd say that the list not including makeup anywhere at all or body painting is a clear enough exclusion.

That's nonsense.  There is no such thing as "exhaustive enough".  It's exhaustive or it isn't.  This list isn't.

James Jackson wrote:
Also I would further make my point by saying that anything that is not a fixed piece of art, but rather only exists for a short time and is in a fluid state (not permanent) is not copyrightable.

And you get that from where?  Please cite a justification for that statement.

If an artist makes a painting, someone takes a picture of it, and later the painting is destroyed, does that mean that the artist's copyright interest in the photograph does not exist? No, of course not.  Again, your argument fails.


The usual dodge when your argument doesn't hold water.

As it happens, I have done exactly that.  So far I've spent $18,000 on copyright lawyers.  Where do you get your information from?  Do you take your own advice?  (It doesn't seem so, since you keep saying things that a lawyer would not.)

So rather than just trashing someone elses opinion of laws which are a pain in the ass anyway. Have your lawyer write a statement that argues that makeup is an art and copyrightable in its non permanent form. Because my understanding is the same as his, I don't think a non recordable art form is copyrightable. The only way it seems to record it is photograph it or video tape it or draw it in which case the imagemaker is the copyright holder. There's no such animal as a shared copyright and as an imagemaker you should be defending that fact and preventing any kind of precedent to that fact.

BTW alot of lawyers arguements don't hold water either, just ask the twinkie defense...


Shawn

Shawn Kuck wrote:
Because my understanding is the same as his, I don't think a non recordable art form is copyrightable. The only way it seems to record it is photograph it or video tape it or draw it in which case the imagemaker is the copyright holder.

You are welcome to any understanding you wish.  However, other readers ought to know that your "understanding" isn't shared either by the courts or by the United States Copyright Office.  So do as you please, but be advised that a makeup artist is not bound by your understanding.

Shawn Kuck wrote:
There's no such animal as a shared copyright

That's not true.  There is.  It's called "joint copyright".  If you don't understand that, it's comparable to your "understanding" of what is copyrightable.

But that isn't the point.  The Cats case wasn't about "shared" copyright, but sole copyright held by the makeup artist.  If that happens to you, you need the permission of the copyright holder in the makeup to distribute your photographs, even though you have copyright to the photographs themselves.  If you don't "understand" that, you need to do a little more reading.

Shawn Kuck wrote:
and as an imagemaker you should be defending that fact and preventing any kind of precedent to that fact.

Not at all.  Nothing said here sets precedent.  But as an imagemaker (and writing to other imagemakers) we would be remiss if we did not understand the precedents already set on this issue.  Putting our head in the sand and saying we don't agree with those established precedents does nothing at all except put us at unnecessary risk.

Shawn Kuck wrote:
BTW alot of lawyers arguements don't hold water either, just ask the twinkie defense...

Have you been paying attention?  This is no frivolous "twinkie defense" argument.  This is a legal stance that was accepted by both the federal judge and the US Copyright Office.

Alan from Aavian Prod wrote:
As to what degree of paint or make-up would be necessary to create a copyrightable work, I will leave that for lawyers.  However, I could see a make-up artist taking a photo of a body painting project and then registering it with the copyright office.

What would they be registering, the photo or the "work"? What form would that be on (for the makeup)?


As for KISS makeup, the problem you'd have there is that their makeup is trademarked.

Unless it's drawn by the makeup artist itself in which case it would be the drawing they own the copyright to and not the actual makeup??

In this case it's the design of the makeup; the makeup job itself is simply a single instance of that design.  Designs are copyrightable.

Shawn Kuck wrote:
I never said it was a twinkie defense. i was referring to your comment to the other photographer that he was saying things that NO LAWYER would say. Lawyers are liable to say anything if it will get their client attention

That isn't quite what I said, but close enough, I guess.

While we can agree that lawyers are likely to say all manner of odd things, there is a point beyond which even lawyers will not go.  For instance, the specific issue I was referring to was his claim that a list of examples published by the Copyright Office was "exhaustive enough" that if something didn't appear on it, it was not copyrightable.  I don't know of any lawyer who would try to make that case.

TXPhotog wrote:

That isn't quite what I said, but close enough, I guess.

While we can agree that lawyers are likely to say all manner of odd things, there is a point beyond which even lawyers will not go.  For instance, the specific issue I was referring to was his claim that a list of examples published by the Copyright Office was "exhaustive enough" that if something didn't appear on it, it was not copyrightable.  I don't know of any lawyer who would try to make that case.

Look, I wasn't "making a case" this is no court of law...and as I've said time and again this concept of makeup as artwork has yet to be tested in a court of law.  I was arguing what any competent lawyer would...the notations of the makeup on paper (what was registered and copyrighted) are copyrightable, but the makeup as applied is a performance and not copyrightable.

It would have to be tested in court...and I doubt you know enough lawyers to say "no lawyer" would argue that way.  It is a logical argument given copyright law.

James Jackson wrote:
I was arguing what any competent lawyer would...the notations of the makeup on paper (what was registered and copyrighted) are copyrightable, but the makeup as applied is a performance and not copyrightable.

No, that argument has been made and lost.  A long time ago: 

Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir.1991)

TXPhotog wrote:

1.  The list is examples, not intended to be exhaustive.  The fact that something doesn't show up on a list of examples does not mean that it can't be covered by copyright.

2.  Body painting (or very creative makeup) is "drawing, painting" - which is on the list of examples.  The list says nothing about the canvas on which that drawing must be made.

So your argument fails.

I think the problem would be the canvas.  It's a PERSON.  And the bodypainter can't own anything about the person.  They can't preserve that person.  If you use your talent to paint someone, I do believe that person can go out and take a picture of themselves and sell it all the way and the bodypainter won't be able to do anything about it.

Maybe we should ask what the body painters here know though.  Rich probably has a solid idea of how this works.  Calling on Rich the Bodypainter!!

DigitalCMH wrote:
I think the problem would be the canvas.  It's a PERSON.  And the bodypainter can't own anything about the person.  They can't preserve that person.  If you use your talent to paint someone, I do believe that person can go out and take a picture of themselves and sell it all the way and the bodypainter won't be able to do anything about it.

Maybe we should ask what the body painters here know though.  Rich probably has a solid idea of how this works.  Calling on Rich the Bodypainter!!

Once again, your argument is not supported by either the court or the US Copyright office.  What is being protected is the design (which is copyrightable).  The fact that the first instance of that design being fixed in tangible form happens to be on a person or a cocktail napkin makes no difference.

TXPhotog wrote:
No, that argument has been made and lost.  A long time ago: 

Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir.1991)

Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). To establish "ownership" of the material the plaintiff must show that the material is original, the material can be copyrighted, and compliance with all statutory formalities.

Ummm...that says nothing about makeup art.  Lakedreams v. Taylor is used to argue that something *can* be copyrighted so long as all the statutes of copyright are followed and the fees are paid, but has never been applied to makeup art.

Makeup is a performance...either of an idea that has been written down (at which point the idea and method can be copyrighted), or of an idea without notation (which can not be copyrighted).  The very uniqueness and fluidity of makeup art makes it a performance...

RED Photographic wrote:
Continuing the hijacking of this thread...

I was thinking about getting a local tattooist to 'tattoo' a model using non-indelible felt tip pens.  It never occurred to me that the tattooist would have any call on the rights.  Would he?  And any suggestions for wording the Release, if necessary?  My normal Model Release for this sort of stuff is a catch-all.  Would that do?

Bringing up tattoos is interesting.  So if a model goes out and gets a tattoo that is clearly an artistic rendering envisioned by the artist, would s/he be the partial copyright owner to ANY photo taken that shows off that tatoo?  I suspect there's gonna be a LOT of model/photographers in trouble over this should any tattoo artists wisen up to this.

James Jackson wrote:
Makeup is a performance...either of an idea that has been written down (at which point the idea and method can be copyrighted), or of an idea without notation (which can not be copyrighted).  The very uniqueness and fluidity of makeup art makes it a performance...

Makeup art is NOT "a performance".  Once the design is conceived and rendered in tangible form (as it is if the design is on paper, or on a face, as the court clearly agreed) it is subject to copyright.  The design is not "a performance".  Whether that design is executed many times or only once does not matter.  The copyright office agrees, the court agrees, and only you are out there crying in the wilderness that a tangible, executed design is "a performance".  There is no foundation in law for that position, and no rationale for it.

This is very silly.  The impact of your argument is to suggest to photographers that since makeup is an "uncopyrightable performance" they need not take legal steps to preserve sole copyright to their photos of artistic makeup work.  That is dangerous advice indeed, based solely on your fanciful notion of "performance" that no court has agreed with.

James Jackson wrote:
Ummm...that says nothing about makeup art.  Lakedreams v. Taylor is used to argue that something *can* be copyrighted so long as all the statutes of copyright are followed and the fees are paid, but has never been applied to makeup art.

Yes it has.  The Cats case.  Apparently you haven't been paying attention.

TXPhotog wrote:

Yes it has.  The Cats case.  Apparently you haven't been paying attention.

I was paying very close attention.  The "Cats" case did not determine anything...if *you'd* been paying attention you'd realize that the "Cats" case was not decided...it went to an out of court settlement.  It is not a legal precedent.

TXPhotog wrote:

Once again, your argument is not supported by either the court or the US Copyright office.  What is being protected is the design (which is copyrightable).  The fact that the first instance of that design being fixed in tangible form happens to be on a person or a cocktail napkin makes no difference.

What if I go down the street and on my own, paint a mural on a public sidewalk.  If someone comes by and takes a photo of it and sells it, can I sue them for copyright infringement and expect to win?

DigitalCMH wrote:

Bringing up tattoos is interesting.  So if a model goes out and gets a tattoo that is clearly an artistic rendering envisioned by the artist, would s/he be the partial copyright owner to ANY photo taken that shows off that tatoo?  I suspect there's gonna be a LOT of model/photographers in trouble over this should any tattoo artists wisen up to this.

Yes, arguably he would have a claim to copyright.  The number of tattoo artists who are going to make this claim is probably pretty small, but as a matter of law he could do just that.  It wouldn't make sense to bother unless your picture started generating a lot of revenue, but in principle it could happen regardless.

And no, the standard model release will not cover that.  If signed by the model it has no effect on the rights of a third party (the tattoo artist); if signed by the artist it would have to be modified to be a license of copyright for his art work, which is not what the typical model release does.

TXPhotog wrote:
Makeup art is NOT "a performance".

You say tomato I say potato... doesn't matter.  There is no legal test of this argument no proof either way that either of us is correct, and thus the argument is at an impasse.

All I'm saying is: a good legal argument against a claim that the publication of a photograph of a specific makeup artist's work is a violation of their copyright is to claim that the makeup art is a performance.

There is no legal precedent otherwise, and it would have to be taken to appellate court to be decided one way or the other.

Just because *YOU* say my argument holds no water does not make it so...so sorry...

James Jackson wrote:
I was paying very close attention.  The "Cats" case did not determine anything...if *you'd* been paying attention you'd realize that the "Cats" case was not decided...it went to an out of court settlement.  It is not a legal precedent.

The issues of law were decided.

The case itself was not decided, but those issues were, and summary judgment to dismiss was denied based on that decision.  In fact that case is cited as precedent in other cases.  A court decision need not be the final resolution to a case to be valid as precedent.  In fact, many appeals court and Supreme Court cases do not "decide" a case, they simply decide the underlying law.  The case itself may be later decided by agreement (a settlement, as happened here) or by remand to a lower court for further consideration based upon the law as determined by the court.

Again, your argument fails.

James Jackson wrote:
All I'm saying is: a good legal argument against a claim that the publication of a photograph of a specific makeup artist's work is a violation of their copyright is to claim that the makeup art is a performance.

No, you claim it is a "good argument" but have no foundation for that claim.

But that's not the important point.  The really important point is, "So what?"  The answer to that question, if a photographer relied on your unsubstantiated view, is that he would not feel the need to protect himself against a "performance" of artistic makeup design, and could therefor be liable for damages in an infringement case brought by the makeup artist.  In arguing his case he cannot point to your claim on a forum as defense against his infringement.  All he can point to is settled case law - which does not help him.

Why do you insist on giving this dangerous advice to photographers?

DigitalCMH wrote:
What if I go down the street and on my own, paint a mural on a public sidewalk.  If someone comes by and takes a photo of it and sells it, can I sue them for copyright infringement and expect to win?

Yes, you could.  To prevail you would have to follow the statutory requirement to register the design of the sidewalk art with the Copyright Office, but all that would take is a paper design (which was executed on the sidewalk) or a snapshot of the completed drawing, a properly filled-out Form VA, and $30.

TXPhotog wrote:
A court decision need not be the final resolution to a case to be valid as precedent.  In fact, many appeals court and Supreme Court cases do not "decide" a case, they simply decide the underlying law.

TX you very obviously know very little about how a legal precedent is set.

A case must ask a legal question, which is subsequently not answered in a lower court to the satisfaction of either the defendant or plaintiff.

That legal question is then referred to the appellate court for a decision...  THAT creates the precedent.

Should an appellate court decide they refuse to hear and sit in judgment of whatever legal question is being asked, no legal precedent is set.

Should the appellate court hear a case, they aren't deciding the case, they are simply upholding or overturning whatever decision the lower court made in that specific legal question...and if the whole case swings on that specific legal question they can also overturn the whole case decision.

The Supreme court simply does the same thing on a federal level issuing decisions on federal law, and overruling anything that is local law disagreeing with that federal precedent.

TXPhotog wrote:
Why do you insist on giving this dangerous advice to photographers?

As I said every time earlier...this is not legal advice.  My advice is to talk to a lawyer.  YOU were the one who wanted to discuss the issue.

On the face of it I agree with you, but a discussion must have an opposite side...I am just giving one of many possible opposition arguments.

If a photographer wants legal advice they must seek the advice of a lawyer.

As I said before "Talk to a lawyer" isn't a cop out on my part...just the only advice I'm willing to give in the matter.  What I'm saying by way of "advice" on legal matters is, following the advice of *anyone* on *any* internet message board gets you nowhere.  Even if you only follow the advice of a lawyer you can be sued.  EVEN if they follow *YOUR* advice they can be sued.  CYA doesn't exist in the legal system.

Now, if you want to have a *discussion* about the *possiblities* well...that I can have, and really I can argue any side effectively.

James Jackson wrote:
A case must ask a legal question, which is subsequently not answered in a lower court to the satisfaction of either the defendant or plaintiff.

That legal question is then referred to the appellate court for a decision...  THAT creates the precedent.

Should an appellate court decide they refuse to hear and sit in judgment of whatever legal question is being asked, no legal precedent is set.

Should the appellate court hear a case, they aren't deciding the case, they are simply upholding or overturning whatever decision the lower court made in that specific legal question...and if the whole case swings on that specific legal question they can also overturn the whole case decision.

The Supreme court simply does the same thing on a federal level issuing decisions on federal law, and overruling anything that is local law disagreeing with that federal precedent.

That is wrong in several respects.

First, to be binding precedent, a ruling must be made within the jurisdiction of the court which issued it.  For instance, an appeals court ruling in the Third District is binding on all lower courts in that district, but not on courts outside it.

However, there is also advisory precedent, which is not binding on a court, but is used as part of the legal framework by other courts to decide cases.  In the example above, a court in the First District would not be bound by a decision in the Third, but they would likely be persuaded by it absent any reason not to be.  Also it is quite common for different appeals court districts to rule differently; in that case a court in yet another district is not bound by either "precedent", but can choose the one which seems most applicable, or can ignore both.

Advisory precedent can be established by courts of any level; it need not be an appeals court.

Appeals courts (or the Supreme Court) do "decide cases" in the sense that if they affirm a lower court ruling, the case is then "decided".

James Jackson wrote:
The Supreme court simply does the same thing on a federal level issuing decisions on federal law, and overruling anything that is local law disagreeing with that federal precedent.

No,  they don't judge against "precedent", they judge against the standards of the constition and statute.  Precedent is simply used as a guideline when it is available; if not they create their own (as, in fact, any court does).

TXPhotog wrote:

James Jackson wrote:
A case must ask a legal question, which is subsequently not answered in a lower court to the satisfaction of either the defendant or plaintiff.

That legal question is then referred to the appellate court for a decision...  THAT creates the precedent.

Should an appellate court decide they refuse to hear and sit in judgment of whatever legal question is being asked, no legal precedent is set.

Should the appellate court hear a case, they aren't deciding the case, they are simply upholding or overturning whatever decision the lower court made in that specific legal question...and if the whole case swings on that specific legal question they can also overturn the whole case decision.

The Supreme court simply does the same thing on a federal level issuing decisions on federal law, and overruling anything that is local law disagreeing with that federal precedent.

That is wrong in several respects.

First, to be binding precedent, a ruling must be made within the jurisdiction of the court which issued it.  For instance, an appeals court ruling in the Third District is binding on all lower courts in that district, but not on courts outside it.

However, there is also advisory precedent, which is not binding on a court, but is used as part of the legal framework by other courts to decide cases.  In the example above, a court in the First District would not be bound by a decision in the Third, but they would likely be persuaded by it absent any reason not to be.  Also it is quite common for different appeals court districts to rule differently; in that case a court in yet another district is not bound by either "precedent", but can choose the one which seems most applicable, or can ignore both.

Advisory precedent can be established by courts of any level; it need not be an appeals court.

Appeals courts (or the Supreme Court) do "decide cases" in the sense that if they affirm a lower court ruling, the case is then "decided".

James Jackson wrote:
The Supreme court simply does the same thing on a federal level issuing decisions on federal law, and overruling anything that is local law disagreeing with that federal precedent.

No,  they don't judge against "precedent", they judge against the standards of the constition and statute.  Precedent is simply used as a guideline when it is available; if not they create their own (as, in fact, any court does).

wow...there's an echo in here...do you often just reword what someone else says and use it to disagree with them?

Alan from Aavian Prod wrote:
As to what degree of paint or make-up would be necessary to create a copyrightable work, I will leave that for lawyers.  However, I could see a make-up artist taking a photo of a body painting project and then registering it with the copyright office.

Vito wrote:
What would they be registering, the photo or the "work"? What form would that be on (for the makeup)?

It is really no different than registering the copyright for a painting or a sculpture.  You take a photograph of the painting or sculpture and then send it into the copyright office for registration.  What they want is an accurate representation of what is copyrighted.  So by taking a photo of the bodypaint, you are representing to the copyright office what it is you wish to register.

TXPhotog wrote:
Unless it's drawn by the makeup artist itself in which case it would be the drawing they own the copyright to and not the actual makeup??

Which is correct.  If the design were committed to paper prior to the bodypaint being applied then you could register a copy of the design rather than a photo of the completed bodypaint.  The issue is to provide documentation as to what is being registered.

TXPhotog wrote:
At that point, the photographer would need her permission to use his photos if he didn't have a license or waiver from the MUA.

I happen to agree with you, but the Cats case really shows how interesting the concept is.  When you hire a make-up artist to do bodypaint for a photograph, there is an intended purpose for the photograph.   Effectively by hiring the make-up artist, they are granting you what is known as the mandatory license to use the work for the use for which they were commissioned to perform.  Basically, the concept is that if you hire a photographer, for example, to take a picture of your building for a brochure, the photographer can’t then refuse to grant you a license to use the photo for the brochure.  The reasons are obvious.  That was what you paid for and to shoot the picture and refuse to let you use it would, at a minimum be a breach of contract, it might also be fraud.

The Cats case illustrated this.  The make-up artist was hired to do the make-up for the production.  There was never any issue that the producers were entitled to use the make-up design for that purpose, the issue arose when years later they started selling other products based on the design. 

So you are absolutely correct, that the photographer would need to get consent to use the design for unintended uses, but the question becomes what happens if the use was to take a photo that would later be resold.  It might well be that the MUA might own the copyright to the design, but has already licensed the photographer to use it since they were hired to do the make-up for the photo.  The issue would come up, when for example, the photo was intended for a specific ad, for example, and then the photographer wanted to use it for something else.  That is where getting a written license or transfer of copyright by the make-up artist might

SORRY IF THIS IS A LATE REPLY, I DID WANT TO RING IN

James Jackson wrote:
Now, if you want to have a *discussion* about the *possiblities* well...that I can have, and really I can argue any side effectively.

I'm still waiting for the "effectively" part.

And to pretend that people don't see "advice" or "arguments" or whatever on a forum and act on them is naive.  Whether "legal advice" or not, when something is said that a person acts on, you have created a problem if you are not accurate.

In this case, it's obvious that some photographers want to believe that this problem doesn't exist, and you are providing them with an excuse to believe it.  That's dangerous.

It's also obvious that the vast majority of people will not go running to their lawyer and ask these kinds of questions, so the advice that they do so, while giving out bad, dangerous ideas for them to ask their lawyers about, is also irresponsibly naive.

TXPhotog wrote:

Yes, arguably he would have a claim to copyright.  The number of tattoo artists who are going to make this claim is probably pretty small, but as a matter of law he could do just that.  It wouldn't make sense to bother unless your picture started generating a lot of revenue, but in principle it could happen regardless.

And no, the standard model release will not cover that.  If signed by the model it has no effect on the rights of a third party (the tattoo artist); if signed by the artist it would have to be modified to be a license of copyright for his art work, which is not what the typical model release does.

I'm going to disagree.  Not legally because I could be wrong.  I'm going to disagree on principle.  I don't believe anyone should able to claim copyright to something that is applied to something they have no way of owning.  That's just crazy and laws should be adjusted to reflect this.  If you're going to do anything onto someone's body, you have no copyright protection.

Here's another scenario to chew on.  You go on vacation to Hawaii.  You see a spectacular sunset and you want a photo of you in it.  You hand your camera to a stranger passing by and he takes the photo.  Does he own the copyright?

James Jackson wrote:
Look, I wasn't "making a case" this is no court of law...and as I've said time and again this concept of makeup as artwork has yet to be tested in a court of law.  I was arguing what any competent lawyer would...the notations of the makeup on paper (what was registered and copyrighted) are copyrightable, but the makeup as applied is a performance and not copyrightable.

James, you are beating a dead horse.  There is no resolution to the disagreement except to agree on what you are disagreeing on.

You contend that make-up is a performance, other claim it is a form of art.

I agree with you, there is no appellate case on point as to the subject.  At least in the Cats case, the judge, the copyright office (who issued a registration) and the parties agreed that the design was copyrightable.

Whether a lawyer will ever argue to the contrary remains to be seen.  In any case, it would be foolish to assume that the design is not copyrightable, since others, particularly the copyright office consider it to be.

What you are offering is not an accepted legal opinion, but instead a defense that might be offered if future litigation occurs.  I will agree with you, it is certainly something that can be offered as a defense. 

Whether or not it would be a successful defense remains to be seen.  From my point of view, you are swimming upstream.   That is particularly true since the copyright office seems willing to register the designs for bodypaint.