DigitalCMH wrote:
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.

It doesn't matter one bit what the design is rendered on.  It could be a mountain (Rushmore), and airplane, a building or a person.  In fact the law has quite a few sections on how to handle copyright of art that is embodied in a building - and nowhere does the concept of the artist owning the building come into play.  Ownership of the medium of expression is not, and never has been, an element of copyright law.

What copyright protects is creative expression; regardless of the tangible form it takes.

DigitalCMH wrote:
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?

Arguably, yes he does.  Whether he would be able to assert that ownership effectively in court is another matter.

Alan from Aavian Prod wrote:
There is no resolution to the disagreement except to agree on what you are disagreeing on.

I agree

Alan from Aavian Prod wrote:
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.

Yes, absolutely, and I couldn't agree more.

Again, this is what I've been saying the whole time.

It's not a matter of swimming upstream Alan, it's just a matter of offering something else that could be said.

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

TXPhotog wrote:
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.

You are both making this far more complex than it is.  Case law (or what you are referring to as precedent) is established by one thing and one thing only, Publication.

Appellate courts hear cases every day, only a small number are published.  When an appellate panel considers that a case presents an important principle of law, they vote to publish it.  Once it is published, it becomes binding upon lower courts in their district (or in the case of a State Supreme Court, upon the entire state or the U.S. Supreme Court, upon all Courts).

A published opinion is not binding upon other districts and is simply advisory in nature.  Other appellate courts, or lower courts are free to rule differently, although they should consider other published rulings.  They can and do, however, sometimes reach a different conclusion.

The most common reason for the Supreme Court to take up a case is when multiple appellate districts have considered the same question and come up with different interpretations.  If a case has been decided the same way by several appelate districts, the Supreme Court will likely never take up the issue since there would be no question for them to resolve.

Likewise, a higher court can order that the decision of a lower court be depublished.  As an example, the Supreme Court can, and has on a number of occassions ordere that the decision of an appellate court be de-published, meaning that it is no longer established law.  They do this in situation where they disagree with the concept of publication as a general principle, but choose not to hear the underlying case.

All decisions of the Supreme Court (and State Supreme Courts) are published by default.  As I have said, only selected appellate decisions are published.

The rules of nearly all courts specify that only published decisions of appellate courts may be cited in briefs.  Often times an appellate court will decide a case on its own merits but not want it to become prescedent for other cases.  Depending on court rules, some permit the citing of other lower court decisions on an informational basis, but they are not binding.  They are merely cited to let the judge in one case, how a judge in another saw the issue.

So the key to a case becoming binding is publication, which occurs only in a small percentage of appellate cases.

James Jackson wrote:
It's not a matter of swimming upstream Alan, it's just a matter of offering something else that could be said.

It'a a matter of offering something dangerous to people who rely on it, knowing full well that despite disclaimers, people will rely on it.  Doing that just because "it could be said" is irresponsible.  If you give a person an excuse, he's likely to take it.  And you won't be the one there later paying the legal fees.

TXPhotog wrote:
Alan, I agree completely. 

In this particular case, the lower court decision was published (it's in West), and is being used as an advisory precedent in other cases.

What you wrote is consistent with what I wrote.

Absolutely, the case you cited was a published case.  The Cats case was not, but it still makes for interesting reading and shows at least how one judge saw it.

TXPhotog wrote:
It'a a matter of offering something dangerous to people who rely on it, knowing full well that despite disclaimers, people will rely on it.  Doing that just because "it could be said" is irresponsible.  If you give a person an excuse, he's likely to take it.  And you won't be the one there later paying the legal fees.

HA! You fuck! You INVITED the conversation and now you are accusing me of being irresponsible.

Fuck off you ass.

Perhaps instead of pointing fingers and saying "you're dangerous" you should look in a mirror you clown.  I've been trying to duck out of this conversation and have been argued with even when I've said you're right.  Now, shut the hell up.  You're the one who's created this whole mess of a thread by insisting we discuss this matter, when from the beginning I've been saying it's a matter best left up to your lawyer...the only person who will be standing by you in the court.

NO ONE SHOULD BE TAKING ANY CUE OR LEGAL THEORY FROM THIS CONVERSATION AT ALL.  EVERYONE SHOULD BE AWARE THAT THESE ISSUES HAVE NOT BEEN TESTED IN A COURT OF LAW, AND THAT EVEN IF YOU FOLLOW THE LETTER OF THE LAW, AND EVEN IF THE LAW HAS BEEN TESTED YOU CAN STILL BE SUED.  THERE IS NO LEGAL BARRIER TO SOMEONE SUING YOU

TXPhotog wrote:
No, the Cats case is published.  It's in West Law.

Yes, I understand that it is published, in that it has been put on a research service.  That is not "published" in the legal sense.

Look at the case you cited before:

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

The number at the end represents the volume and reference assigned to the case for cross reference when published.  That is how the case is cited when given to a court.

The Cats case is simply published for educational purposes but is neither case law nor was the publication specifically authorized by the court.  At the end of any appellate decision where publication is authorized, that will be included in the order.

So the case is in West Law so attorneys can look at it and use the logic of the appellate court in their briefs to argue their case. But they can't cite the case in their brief because it lacks the information in the Lakedreams case, specifically the volume information which denotes it was a publication ordered by the court.  From a legal standpoint, it is an unpublished case.

West is free to publish any case they want but the publication by them does not carry the legal weight of publication ordered by the court.

James Jackson wrote:
HA! You fuck! You INVITED the conversation and now you are accusing me of being irresponsible.

Fuck off you ass.

James, I agree with you, the best thing to do is to consult a lawyer.

However, the language was unecessary.  Even if you feel that way, let's keep it civil between us.

Alan from Aavian Prod wrote:

James, I agree with you, the best thing to do is to consult a lawyer.

However, the language was unecessary.  Even if you feel that way, let's keep it civil between us.

I'm not uncivil with you Alan, because though you've disagreed with me this whole thread you've not taken the low road and called me "dangerous".  This other clown however has been dogging me from the word go, and hasn't let up.  I'm tired of people on this board posting and arguing when they haven't even a reason to do so...  I tried to let him out of this argument and failing that I tried to duck out of it myself, but was called to task each time...and now?  NOW he calls me "dangerous".  Well that's "slanderous" and the jerk should keep his trap shut and learn a lesson from you on how to discuss things.

TXPhotog wrote:

DigitalCMH wrote:
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.

It doesn't matter one bit what the design is rendered on.  It could be a mountain (Rushmore), and airplane, a building or a person.  In fact the law has quite a few sections on how to handle copyright of art that is embodied in a building - and nowhere does the concept of the artist owning the building come into play.  Ownership of the medium of expression is not, and never has been, an element of copyright law.

What copyright protects is creative expression; regardless of the tangible form it takes.


Arguably, yes he does.  Whether he would be able to assert that ownership effectively in court is another matter.

Bob owns a building. He hires or allows Jim to paint a mural on the side wall.
Billy Nikon pays (or barters) Bob to photograph the building. Billy gets a property release from Bob. Does Billy Nikon have to get a release from Jim too?

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...

Applying makeup to a person is a performance, exactly the same as adding paint to a canvas. Neither seems to be under discussion here; the final results are. The comparison isn't to the application of makeup or paint, but to "finished" makeup or paintings.

Just because *YOU* say your argument has any validity does not make it so...so sorry...

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.

Those same arguments would hold for a photograph of a statue or a painting, which is clearly not a performance. As such, the conclusion isn't supported by the argument.

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.

Already happened, though not yet with the photographers themselves--it's been between the person wearing the tattoo and the artist. See The Tattoo Copyright Controversy, and the various links noted there. This isn't a new issue for tattoo artists. David Beckham has had issues with this, as has Rasheed Wallace.

DigitalCMH wrote:
'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.

Frescos and murals painted on someone else's property? Mount Rushmore, as mentioned earlier, isn't owned by the sculptor.

James Jackson wrote:
I'm not uncivil with you Alan, because though you've disagreed with me this whole thread you've not taken the low road and called me "dangerous".  This other clown however has been dogging me from the word go, and hasn't let up.  I'm tired of people on this board posting and arguing when they haven't even a reason to do so...  I tried to let him out of this argument and failing that I tried to duck out of it myself, but was called to task each time...and now?  NOW he calls me "dangerous".  Well that's "slanderous" and the jerk should keep his trap shut and learn a lesson from you on how to discuss things.

TXPhotog didn't call you dangerous. He said your advice was dangerous. There's a very clear difference between those two statements.

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

Alan from Aavian Prod wrote:
But they can't cite the case in their brief because it lacks the information in the Lakedreams case, specifically the volume information which denotes it was a publication ordered by the court.

Alan, please look at page 6 of the brief I gave the URL to in the Elektra Entertainment case.  The Cats case (Carell) is cited in that memorandum of law (in response to a similar citation by opposing counsel).

Now please look at page 31 of the Appellate Court decision and order in the Hogarth case that I also gave a link to above.  The judge in the decision cites the Cats case.

In both such citations the full reference you need is given.  This is a published case.  The full citation, with the numbers you want, is Carell v. Shubert Organization, Inc., 104 F.Supp.2d 236 (S.D.N.Y. 2000)

Kevin Connery wrote:
Applying makeup to a person is a performance, exactly the same as adding paint to a canvas. is a Neither seems to be under discussion here; the final results are. The comparison isn't to the application of makeup or paint, but to "finished" makeup or paintings.

Saying that makeup isn't a performance is like saying a stage play isn't a performance.  Both have the same result...an artistic rendering of an idea (which can either be directed or unscripted), which is only temporary, and which is also fluid in its expression.

No one will argue a stage play is not protected under copyright, tell me how makeup art is different?

Makeup art is never designed to be a lasting work that will exist in a fixed form...if it was I'd agree with you...but it is not.

Tattoos are a different story entirely, those have validity as a copyrightable work of art.

TXPhotog wrote:
This is a published case.

You might be right, I haven't read the full case from the cite you gave me.  I am still not sure but it really doesn't matter.  If I am wrong I stand corrected.

But we are in agreement on the underlying principles, so it really doesn't matter.

James Jackson wrote:
Saying that makeup isn't a performance is like saying a stage play isn't a performance.  Both have the same result...an artistic rendering of an idea (which can either be directed or unscripted), which is only temporary, and which is also fluid in its expression.

No one will argue a stage play is not protected under copyright, tell me how makeup art is different?

Do you do this to be deliberately obtuse?  Or is it possible that you really do not understand?

A performance of a stage play is not protected under copyright.  But the design of the stage play is.  Actually there can be several different designs, all separately copyrightable:  the score for the music, the script, the lighting design, the set design and other elements have all been ruled eligible for copyright.

As a matter of convenience and history, scripts have been sent to the Copyright Office in paper form.  But any recording (paper or otherwise) of the script qualifies.  It is the design of the thing that warrants copyright protection, not the thing itself.

So too with tattoos and with makeup.  It isn' t the thing itself (the tattoo or the makeup) that is protected by copyright.  It is the design from which one or more instances can be made.  In the Cats case the designs were first rendered on paper and submitted to the Copyright Office; they were then executed upon (performed upon, if you insist) the actors following that design.

But Carell could as easily have sent the Copyright Office a photograph of her rendering of the makeup design and received copyright protection for it.  If it happens that she designed it on a person, that matters not.  The medium (so long as it is tangible) doesn't matter.  There are lots of very tangible people out there.

If a makeup artist comes to your studio and renders an artistic design (which she may or may not have previously designed on paper - it doesn't matter), that design is subject to copyright protection.  The specific instance is not what is being protected.  So if you take a picture of it, you are making a copy of an instance of her design, and you have to get her permission to use it.

I don't know how much more simple it can be.

James Jackson wrote:
Saying that makeup isn't a performance is like saying a stage play isn't a performance.  Both have the same result...an artistic rendering of an idea (which can either be directed or unscripted), which is only temporary, and which is also fluid in its expression.

The comparison is bogus. (False. Illogical. Inane. Spurious [take your pick]).

The tangible instantiation of makeup--not the performing the act of putting it on--is a person with makeup, in exactly the same way the tangible instantiation of a painting is the canvas with paint.

James Jackson wrote:
Makeup art is never designed to be a lasting work that will exist in a fixed form...if it was I'd agree with you...but it is not.

The painted subject IS the fixed form. It's tangible. You can see it. You can touch it. It is durable as long as it isn't removed or wears off--again, exactly the same as a painting.

It's not ephemeral, like an unrecorded song being sung or stage performance, which is the most common exception to what can be copyright protected.

It seems your interpretation of 'fixed form' is quite different than the one used by Alan, TXPhotog, the courts, and I, and that may be the entire basis for the disagreement.

Kevin Connery wrote:
The comparison is bogus. (False. Illogical. Inane. Spurious [take your pick]).

I pick none of the above.

The comparison is not bogus...if you think it so...as I said...prove it.  Demonstrate a difference between any given application of makeup and a performance (be it music, drama, or comedy).

There is none.

Just as an actor or musician appears on stage for a short while (often in makeup) and then disappears from that stage, so too a makeup artist's work is done on the skin of a person, and only appears there for a short while, and is gone.  Just as a musical or acting performance is fluid and controlled not only by the notes written down for them, but also by the talent of the actor or musician, and thus is fluid, so too is makeup a fluid demonstration of an idea that a makeup artist had...it can not possibly be expressed the same on two different people, or by two different people, and the art is as much a part of the person who had the idea as it is the person expressing the idea, and the person on which the idea is expressed (the actor, musician, or model on which the idea is applied).

Kevin Connery wrote:
The tangible instantiation of makeup--not the performing the act of putting it on--is a person with makeup, in exactly the same way the tangible instantiation of a painting is the canvas with paint.

I disagree.  Painting a canvas with paint is influenced not at all by which piece of canvas is selected...nor is it at all influenced by any sort of movement or sense of will on the object on which it is painted because canvases don't move.  It also is not influenced by time to the extent that the very transitory art of makeup is.  These are all factors that influence "tangible"...  How tangible is something if it is never in the same state from moment to moment?  Makeup *is* that fluid...ask any makeup artist...you place a model under hot lights for more than a few seconds and the makeup has taken a life of its own...it begins to change, and though that change can be controlled by a good makeup artist, it is still a fluid change.

Kevin Connery wrote:
The painted subject IS the fixed form. It's tangible. You can see it. You can touch it. It is durable as long as it isn't removed or wears off--again, exactly the same as a painting.

Believe it or not there *is* a time factor involved in calling something fixed.  It has never been nailed down to minutes or moments or hours or seconds, but makeup is very transient...it is not at all the fixed form that you all are making it out to be.  It molds and changes moment to moment and is also affected by the wearer to an extent that it can't be said that the application of makeup alone makes the art...

Put the primary makeup from the main character in "Cats" on 10 different people and you'll get 10 different separate pieces of art, that are constantly changing as the faces of those 10 people go through different movements, and are moved in different ways by the muscles which grow uniquely in the way they grow in each of those individual faces.

Kevin Connery wrote:
It's not ephemeral, like an unrecorded song being sung or stage performance, which is the most common exception to what can be copyright protected.

It is PRECISELY as ephemeral as an unrecorded song or as a stage performance.  You will never get the same results twice nor will you ever get the same results from two different faces.  In fact, once a moment is gone in any makeup application that moment is gone forever...you'll not get it back to the same extent you'll never be able to perform the same stage performance again or sing the song the same exact way again.

It's like giving a improvisational speech...the framework always remains the same, but it's anyone's guess as to exactly how it will come out (improvisational speech is also not protected under copyright)

Kevin Connery wrote:
It seems your interpretation of 'fixed form' is quite different than the one used by Alan, TXPhotog, the courts, and I, and that may be the entire basis for the disagreement.

I'd agree my interpretation of fixed form is different than you, Alan, or TX, but I'd disagree that the courts have had any such reaction or definition of fixed form.  I'm sure if someone presented this as a case in court they *could* successfully argue that makeup is transient...but as has been said many times before, that idea has not been tested at all in court...not even in the "Cats" case.

James Jackson wrote:
I pick none of the above.

The comparison is not bogus...if you think it so...as I said...prove it.  Demonstrate a difference between any given application of makeup and a performance (be it music, drama, or comedy).

There is none.

Makeup results in a tangible object: skin with paint on it.
A performance does not result in a tangible object.

James Jackson wrote:
It is PRECISELY as ephemeral as an unrecorded song or as a stage performance.

You continue to state that the transience of makeup is sufficiently short as to be ephemeral in the same sense as a speech--the first words are gone before the next words are spoken. Speeches and other live performances are time-bound: they operate in real-time. That is not true for makeup; it can remain present for hours or days (weeks or months, I suppose, if someone really wanted to); the first part applied is NOT gone before the final bits are applied; it does not operate in 'real-time'.

The definition of 'fixed' to exclude artwork on a face/skin would also exclude any artwork on any flexible substrate (e.g. a rubber sheet, a knit t-shirt, a latex suit), where it could be stretched/skewed/distorted--which is not the case.

It seems your interpretation of 'fixed form' is quite different than the one used by Alan, TXPhotog, the courts, and I, and that clearly IS the entire basis for the disagreement.

While your interpretation is an amusing exercise showing what a desperate lawyer might be forced to argue if stuck on the defending side of the issue, it IS dangerous advice to make to photographers.

Kevin Connery wrote:
You continue to state that the transience of makeup is sufficiently short as to be ephemeral in the same sense as a speech--the first words are gone before the next words are spoken. Speeches and other live performances are time-bound: they operate in real-time. That is not true for makeup; it can remain present for hours or days (weeks or months, I suppose, if someone really wanted to); the first part applied is NOT gone before the final bits are applied; it does not operate in 'real-time'.

Kevin... Go to the root of it... the definitions in US copyright law @ 17 USC c:1 § 101

§ 101. Definitions

"A work is “fixedâ€? in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixedâ€? for purposes of this title if a fixation of the work is being made simultaneously with its transmission."

CLEARLY an applied make-up design is well within that definition and is not merely transient. CLEARLY if it is stable enough and lasts long enough to be photographed ["reproduced"] it IS fixed in the first instance. The medium, or what it is fixed ON, in it's pre-photographed form makes not a bit of difference.

Quite conclusive in the case of make-up.

Studio36

James Jackson wrote:
The comparison is not bogus...if you think it so...as I said...prove it.  Demonstrate a difference between any given application of makeup and a performance (be it music, drama, or comedy).

There is none.

Here's the deal.  Music, drama and comedy can all be copyrighted.  They are commonly copyrighted.  What is copyrighted is not the "performance" but the "design".  The fact that a given performance of that design is not identical to another is immaterial.  Under copyright law, "substantially similar" is the test, not "the same".

What part of "design" don't you understand?

This has passed beyond silly to ludicrous.

Kevin Connery wrote:
Frescos and murals painted on someone else's property? Mount Rushmore, as mentioned earlier, isn't owned by the sculptor.

I find it unlikely that if I went and took a picture of Mount Rushmore and attempted to sell/publish it that there is any recourse the anyone can take for a copyright violation.

Mount Rushmore I believe was commissioned by the Federal Gov't?  I think WE the People OWN Mount Rushmore.

studio36uk wrote:
CLEARLY if it is stable enough and lasts long enough to be photographed ["reproduced"] it IS fixed in the first instance.

So you could then say that a stage play or a piece of music or a speech IS fixed too by the same logic...

TXPhotog wrote:
Here's the deal.  Music, drama and comedy can all be copyrighted.  They are commonly copyrighted.  What is copyrighted is not the "performance" but the "design".  The fact that a given performance of that design is not identical to another is immaterial.  Under copyright law, "substantially similar" is the test, not "the same".

What part of "design" don't you understand?

This has passed beyond silly to ludicrous.

I quite well understand a copyrighted design.

I also know that those things are copyrighted based on their written material all the time as well.

What I'm saying is the applied makeup itself is NOT copyrighted or protected under copyright.

So just as in the case of a song, or a stage performance, no one is violating copyright to make their own rendition of it.

Also just as in the case of a song, stage performance, or speech it requires that the makeup artist notate how the makeup is to be applied before applying it...else they are just doing it impromptu and out of imagination.

Gunfitr wrote:
O.K.

I'm a lawyer.

I have to ask:  are you a specialist in entertainment or Intellectual Property law?

The reason I ask is because, from long, unhappy experience with lawyers who were not and were asked questions about it, the most amazing statements got made by them.  I've spent lots of time in court and in lawyer's offices on exactly these kinds of issues, and the difference in knowledge between IP/Entertainment lawyers and the opinions of non-specialists is stark.

Whenever I advise someone to consult a lawyer on these kinds of matters I am careful to specify an IP/Entertainment Law specialist for that reason.

James Jackson wrote:
What I'm saying is the applied makeup itself is NOT copyrighted or protected under copyright.

Yes, I know you are saying that.  And it totally ignores what is at issue.  You might as well be arguing about Pink Elephants, which also are not at issue.  Until you come to grip with the real issue, you will never be able to deal with this problem.

The design of the makeup is protected by copyright.  The "makeup itself" is not.  We all know that.  I've said it.  The courts have said it.  Nobody is arguing it.

It is the design of that makeup that is protected.  And that design cannot be copied, even imperfectly, in a "substantially similar" manner, without infringing on the copyright of the designer who happens to be the makeup artist.

The design is rendered by the makeup artist, on a human face, on paper, or on a ham sandwich.  It doesn't matter which.  The design (a copy of it) can be submitted to the Copyright Office and they will issue a valid certificate of registration for the design, not for the "makeup itself".  Anyone who copies that design in a "substantially similar" manner is infringing.  Note I did not say "Anyone who copies the "makeup itself" is infringing.

If you are incapable of understanding that, no rational discussion of the subject is possible. 

Continuing to say that the "makeup itself" isn't protected is just a smoke screen to avoid the issue.

Gunfitr wrote:
What I can say, is if you hire a makeup artist, get them to sign over any claim to reproduction and you are done.

That to me seems to be the bottom line which is why I made the suggestion before.  If you simply have the make-up artist or body painter either sign over any interest they might have in copyright or provide a full usage license, then there is simply no issue.

Signing over rights gets past this argument altogether since there is no issue as to ownership once the make-up artist has signed off.

James Jackson wrote:
So you could then say that a stage play or a piece of music or a speech IS fixed too by the same logic...

As can a live broadcast on radio or television, say reportage of a sporting event, or on the internet, a stage production or a live musical performance CAN be fixed... it can be recorded as performed and by that means becomes fixed for copyright purposes... NOT merely the resultant recording but the performance actuality - the content and staging - themselves become fixed... even if they weren't previously fixed in any other form... or even if it couldn't, by ANY means, have been previously fixed such as with unscripted live broadcasting.

Any recording becomes, in itself, a tangible fixation of a transient performance for copyright purposes. Except, perhaps, for live unscripted broadcasting almost everything else will have been fixed in some form in advance - by way of notes; drawings; designs; layouts; scripts; dialogue; dance notation; musical scores, ect ect... ALL of which are evidence of copyrightability. The essence of performance copyright is in the documentation AND that documentation MAY contain creative contributions by more than one person.

YES!

Studio36

Alan from Aavian Prod wrote:
That to me seems to be the bottom line which is why I made the suggestion before.  If you simply have the make-up artist or body painter either sign over any interest they might have in copyright or provide a full usage license, then there is simply no issue.

Signing over rights gets past this argument altogether since there is no issue as to ownership once the make-up artist has signed off.

DITTO - and exactly what I said two pages ago.

In MY particular case, working outside the US, for reasons that Alan completely understands.

Studio36

glitterguru wrote:
my mu artist is a very good friend and I always treat her the way I would want to be treated as a fellow artist, but I just don't understand how we can "offically" breakdown an image.

any thoughts..

There is no way to draw a bright line around what level of creativity is required to warrant copyright protection, but there is a way to judge it (using common sense, and recognizing that the judgment therefore cannot be assured to be perfect.)  It is suggested in a passage from the article on the Cats case cited on the first page of this thread:

Scenes a faire

The scenes a faire doctrine is not an attack on the copyright protection in a work, but a defense to a charge of infringement of the work. Scenes a faire are sequences of events necessarily resulting from the choice of setting or situation, or incidents, characters or settings that are indispensable in the treatment of a given topic.22 The doctrine is related to the merger of idea and expression. Although the precise expression of a stock scene may be protected, the more general scene a faire is not.

A typical scene a faire in a theatrical set design might be the living room set. All such sets will contain combinations of sofas, chairs, lamps, artwork and coffee tables. Certain arrangements (for example, a sofa flanked by chairs with a coffee table in front) are so common that they are unlikely in themselves to be protected. However, specific choices of colors, patterns and styles (as well as graphic or sculptural elements specially created for the production), taken together, might be sufficiently detailed that their appropriation would be an infringement. Design scenes a faire are not limited to scenery. Standard lighting and sound effects or ordinary makeup designs (such as an aging face) may also be scenes a faire.

That is, makeup which simply follows normal standards is not original to the MUA - she is simply applying those standards as her judgment deems best.  Only when the degree of creativity goes beyond what typical practice suggests into the territory of a new creation does the work qualify for protection.

That's why early in this conversation I wrote of the case of "body painting" or "artistic makeup" to distinguish it from the more utilitarian type.

glitterguru wrote:
WOW..what a thread....

If mu is copyrightable then so is hair and so is that models performance on that frame and so is the photographers choice of apeture, lighting..etc...where does the madness stop...maybe that will be the case someday where everyone involved owns copyright...maybe that's the answer, but then what does the photographer get?..what is my product to sell?

best,
GG

It is already substantially, and on a technico-legal level, that situation in the UK where I work. No "work for hire" and contractors - or non-contract contributors - [but not factual employees] own copyright in their individual copyrightable contributions... all of it has to be, and should be, dealt with contractually.

Studio36

John Chainz wrote:
okay. Is it possiable for a model to own copyright on their images if say.....

the model is the one that comes up with the shot, the makeup,positioning etc and the photographers only purpose there is to click the shutter?

Generally, no.  What the model came up with were ideas for the shoot.  Even a lot of ideas.  Ideas cannot be protected by copyright.

When you took the picture you checked the framing, made sure the lights didn't do anything wonky, checked to be sure things were in the right place as seen through the viewfinder, and waited until she had the right expression on her face before snapping the shutter.  Those are part of the creative process.

If you aren't her employee, she doesn't own the copyright.

However, if she had drawn a sketch of the photo and asked you to do a shot like it, then she would have copyright to the design from which the photo was created.  You would still own copyright to the photo itself - but you would have to get a license from her to use it.

There is an alternative.  You two could agree that you would both contribute creative elements that were to be taken as a whole, in which case you would both be owners of the copyright ("joint copyright", or shared copyright, which some of our correspondents don't think exists).  It's not quite as simple as that, but it can be made to happen.

(Edited to add:  Sorry John, I didn't notice that you were a model.  Please disregard the "she" uses above.  I thought I was writing to a photographer.)

TXPhotog wrote:
There is an alternative.  You two could agree that you would both contribute creative elements that were to be taken as a whole, in which case you would both be owners of the copyright ("joint copyright", or shared copyright, which some of our correspondents don't think exists).  It's not quite as simple as that, but it can be made to happen.

Oh it can exist all right TX...

17 USC c:1 § 101 and § 201

§101. Definitions

A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

§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.

Besides this it is also possible to "share" copyright ownership with another person or persons by contract - anyone at all. They need not to have participated in the creation of the work.

Studio36

TXPhotog wrote:

Don't think so. Does that mean I can't own the copyright of a sunset because there is already a picture of a sunset (or a drawing of one)? Or a photo of a building for the same reason. I don't need a license for that.