Many wonder, “Can I trademark my face?” Unfortunately, the immediate answer is no. Copyright is only valid for man-made creative ventures. The creative work must be a product of deliberate effort through creativity and conscious choices. Items found in nature, such as DNA and human faces, are not deliberately created by man. Instead, they are considered a natural phenomenon. Therefore, they're not subject to intellectual property rights.

When you think about it, it wouldn't make much sense to copyright faces. If that were possible, every tourist with a camera would have to get permission to print their own pictures if you were in the background.

Instead, humans have personality rights. Your voice and appearance are your own, and no one can use them to promote a cause, product, or organization without your say-so. Any advertisement wanting to use your image must obtain a signed model release, and no one can create merchandised products with your likeness without your permission.

What About Celebrities?

You'll find that celebrities don't have a copyright on their faces either. However, businesses may still have to pay to use an artist's image. For example, Topshop in London purchased the rights to a photo of Rhianna from the photographer who owned the copyright. Topshop then sold clothing printed with the photograph. Rhianna sued and won based on the tort known as “passing off.”

Passing off was originally meant to stop businesses from passing off their services or goods as those of another company. One example would be if a company uses packaging too similar to another business to intentionally mislead customers into buying their product instead.

In the Rhianna case, the court decided in her favor because she had already extensively used her likeness for commercial purposes and built up goodwill in her image. By using her image on their clothing, Topshop was in effect misleading their customers into thinking that Rhianna had consented to the use of her likeness.

The Federal Trade Commission has strict rules about abusing facial recognition technology due to its privacy implications. While they promise to be tough on offenders, privacy advocates want stronger protections yet. One proposal sought to copyright facial features or faceprints, but that's unconstitutional.

Under the constitution, only the author of a photograph can initially obtain copyright. After England spent almost 150 years under the thumb of a copyright-like monopoly, awarding entitlements directly to the Stationer's Company, the U.S. agreed that Congress can only give copyright to the person who fixes or creates a specific work.

Also, Congress cannot allow facts to be copyrighted. We want them to be freely available to all, not tied to one person for the length of their life plus 70 years.

Copyrighting one's facial features is also a bit ridiculous. Copyright infringement would be impossible to avoid in today's technologically advanced world. And we'd be able to sue every person who accidentally captures us in their picture on their smartphone.

Statutory damages for copyright infringement range from $750 to $30,000. If the courts decide the photo is fair use, it still creates high administrative costs and invites courts to project their own normative views into the analysis of the equitable doctrine.

Makeup Artists

While some may consider a beautiful makeup job a work of art, creating an individual look is not protected under IP laws unless it's stage makeup for a show like Cats. Cats held that their stage makeup was protectable under copyright law because it was a fixed work despite changing actors. Therefore, it ranked up there with their choreography as being a creative part of the show.

Creative makeup use may also be protected under trademark law. Distinctive stage makeup, like the full-face makeup Gene Simmons wears in Kiss, can be trademarked under the Lanham Act. The difference between copyright and trademark law is that a copyright protects originally authored works while a trademark protects distinctive words, pictures, and symbols used to identify services or goods in commercial business activity.

Everyday makeup is not considered a protected creative work. Even special makeup for a prom, wedding, or red carpet event is not covered. Wedding and fashion photographers may credit makeup artists in their magazine spreads or portfolios, but by law, it's unnecessary. The photographer has full rights to the finished product, and the makeup artist has no legal rights to use the photo in their own portfolio without permission.

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