NAIL ART AND IPR  

WHAT IS NAIL ART?

The beauty industry has experienced exponential growth in recent years, transforming the simple act of applying a single nail color into what we now know as nail art. Nail art encompasses the creative process of painting, drawing, and embellishing one's nails, whether on the fingers or toes and has become a prominent fashion statement. It spans from intricate designs using glitters, stencils, and crystals to simple yet elegant lines and shapes. This artistic endeavour is not only budget-friendly and trendy but also warrants recognition and protection under copyright law. By securing copyright protection, creators can rightfully claim economic benefits and receive due credit for their imaginative and artistic endeavours.

NAIL ART AND COPYRIGHT-

Copyright is the legal right granted to owners over their literary, artistic, musical, and dramatic work, among others. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring the same. According to Section 2(c) of the Copyright Act, 1957 (hereinafter referred to as Act), artistic work is defined as:

“(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;

(ii) a [work of architecture]; and

(iii) any other work of artistic craftsmanship;”  

The nature of nail art, which relies on the creativity and artistic skills of nail technicians, may be categorized as artistic work. However, for nail art to be eligible for copyright protection, it must be a unique, original artistic or graphic work expressed in a tangible form. While nail art is created on a tangible medium (the client's nails), it is not long-lasting and can easily wash off. Therefore, to secure copyright protection, nail technicians are advised to maintain photographic evidence of their work to fulfill the requirement of expression in tangible form.

NAIL ART AND COPYRIGHT ESSENTIALS-

For nail art to be protected under Indian copyright law, it must satisfy the following requirements:

1. Nail art is considered an unconventional form of artistic work and to qualify for copyright protection, it must be new, original, and innovative. This means that merely changing the color of nail polish or using different shades does not meet the criteria for copyright protection. One famous example of unique and original nail art is the iconic 'B' painted on models' nails in Balenciaga's 2017 fashion show, known as the 'Balenciaga effect'. Another notable example is the intricate 'caviar manicure'.

In order for a nail artist or nail technician to obtain copyright protection, their creative ideas must be expressed in a tangible form. This requirement stems from the idea-expression dichotomy, a widely recognized principle of copyright law. While the nails themselves can be seen as a tangible form of expression, it is advisable for nail artists to further solidify their copyright claim by taking photographs of their nail art designs. By doing so, they can enhance their chances of being awarded copyright protection for their unique creations.

COPYRIGHT INFRINGEMENT-

After the 2017 Balenciaga Fall Fashion Show, logo nail art has gained significant traction among luxury brands such as Gucci and Louis Vuitton. Nail artists worldwide are not only recreating logos but also incorporating slogans, brand names, cartoon characters, caricatures, and various images into their nail art designs. This trend has sparked discussions about potential copyright and trademark infringement. When nail artists produce art featuring protected logos and images for commercial purposes, they may be violating the intellectual property rights of the original owners and could be held liable for damages. However, if the unauthorized reproduction is for personal use, artists may be protected under the fair use/fair dealing doctrine, as outlined in Section 52 of the Act in India. While some companies may not actively pursue legal action against nail artists, it's worth noting that companies like The Walt Disney Company have a reputation for taking legal measures against infringers.

To steer clear of violating the copyright or trademark of others, nail artists can seek advance written authorization from the copyright or trademark holders through licensing agreements. In some cases, they may need to pay an annual licensing fee to compensate the rights holder for the use of their intellectual property.

IP Protection of Nail Art

To obtain copyright protection for their work, nail artists and nail technicians should:

1. It's important to avoid sharing any images or drawings of your artwork on social media before obtaining copyright registration. Once your work is out in the public domain, it can be challenging to establish your copyright.
2. Ensure to register your one-of-a-kind nail art designs for copyright protection under Section 45 of the Act to safeguard your original creations.
3. Take necessary steps to address copyright infringement by sending cease and desist notices to individuals or organizations that reproduce an artist's work without providing proper credit.

Conclusion

Nail art, once a simple beauty practice, has evolved into a unique and artistic form of self-expression, gaining recognition not only as a fashion statement but also as a form of intellectual property. As nail artists and technicians push creative boundaries, it is crucial to understand the importance of protecting their original designs under copyright law. By taking tangible steps, such as documenting their work and seeking copyright registration, creators can safeguard their artistic efforts, ensuring they receive due credit and economic benefits. Additionally, nail artists must be cautious of potential copyright and trademark infringements when incorporating logos, brand names, or other protected elements into their designs. A robust understanding of intellectual property rights and proactive legal measures can help nail artists thrive in this growing and competitive industry, ensuring their creativity is both respected and protected.