Artist Vlada Haggerty and her legal counsel managed to get budding cosmetics mogul Kylie Jenner to credit her Instagram photos with Haggerty’s name and Instagram handle following claims of copyright infringement. As of this weekend, Jenner posted an 4x4 image of metallic liquid dripping off of a pair of lips – similar to ones she has posted in the recent past – along with the caption, “Check out the wonderful makeup art of @vladamua!” The post comes after Los Angeles-based Haggerty took to her own Instagram account in November to call out Jenner for allegedly copying her work for her Kylie Cosmetics collection.
In addition to calling out the reality star on two separate occasions for copying, Haggerty enlisted legal counsel. According to a November 2016 statement from Stephen McArthur of Los Angeles-based McArthur Law Firm, “Vlada Haggerty is known for pioneering the dripping lip art style. This is the second time that Kylie Cosmetics has taken images without any acknowledgement and without the payment of a proper licensing fee, which amounts to copyright infringement. Additionally, Kylie Cosmetics sells its products under a logo that is so similar to the dripping lip art style that symbolizes Ms. Haggerty’s makeup artist brand that she receives daily inquires as to whether she is associated with Kylie Cosmetics.”
McArthur continued on to say: “Theft by big brands like Kylie Cosmetics from original artists without proper licensing and attribution must stop. Due to Kylie Cosmetics’ repeated infringement and refusal to properly attribute or license, we plan to file a lawsuit early this week.”
While it is being somewhat widely reported that McArthur did, in fact, file a copyright infringement suit against Jenner on Haggerty’s behalf in connection with the imagery at issue, no such suit was filed. Instead, it appears that Haggerty’s threat of litigation may have been enough to get Jenner to cooperate.
As for whether Jenner was forced to pay Haggerty to retroactively license the imagery, that is unclear – but it seems unlikely, considering that Haggerty is already getting a pretty good deal here. As you may know, if the copyright at issue is registered, it is possible to receive statutory damages (the $150,000 figure set forth in the Copyright Act), as well as attorney's fees, in connection with a copyright infringement lawsuit.
However, since Haggerty does not appear to have a federally registered copyright in connection with the photos at issue, that changes the damages game, so to speak. Without a registration, it is possible for a plaintiff (that would be Haggerty here if she had filed suit) to get actual damages and profits - the actual money lost (or potentially lost) by the copyright owner and the money gained by the individual using the work - in a suit involving an unregistered copyright. The problem with that is that it is oftentimes difficult for the plaintiff to prove.
With all of this in mind, chances are, Vlada Haggerty has arguably fared better than she would have if she had, in fact, filed a lawsuit, considering that her copyright is not registered and Kylie Jenner is known to charge upwards of $150k to post any promotional messages on social media! And that is more than the statutory damages amount.