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image via W Magazine

Fresh on the heels of settling the $10 million lawsuit that he filed in April against LVMH Moët Hennessy Louis Vuitton, renowned makeup artist Sammy Mourabit is taking photographer Steven Klein and makeup guru Francois Nars to court in a separate multi-million dollar lawsuit, claiming that they used his work from a 2013 W magazine photoshoot for the packaging and promotion of for their collaboration collection without his permission, a move that Mourabit calls “blatant and mendacious deception of the public and theft.”

According to Mourabit’s suit, which was filed in New York state court on Tuesday, “With breathtaking chutzpah, Steven Klein – a well-known fashion photographer, and Francois Nars – a well-known makeup artist – launched a line of makeup named after themselves.” The problem, according to Mourabit? The packaging and promotional materials for the collection “promoted another artist’s – Sammy Mourabit’s – work” without compensating him or giving him credit for his work, and instead, “fraudulently” presenting it as their own.

Mourabit – who is known for his work with Rihanna, Katy Perry, Madonna, Britney Spears, major magazines like Vogue and Harper’s Bazaar, and designers such as Rick Owens – takes issue with one photograph in particular, one that Klein took during a December 2013 photo shoot for W magazine.

While Klein, as the photographer of the imagery, has exclusive rights in the photos in accordance with copyright law, Mourabit claims that he also has rights in the image since he was responsible for the makeup design. Mourabit points to a federal copyright registration for the “Juliette Lewis Woman Scorcese” photo from the W magazine spread – which depicts actress Juliette Lewis with a glitter-covered face, bold eyebrows, and bold red glittered lips – as evidence of his rights in the image.

While the bar for copyright protection is notoriously low (and according to at least some experts, may be getting a bit more rigorous as of late), it is certainly worth pondering whether bold eyebrows, a glitter-covered face, and red lips meet the requisite level of originality.

image: Nars x Steven Klein

Mourabit goes on to claim that “both Nars and Klein knew they were intentionally deceiving the public in promoting their new products.” In particular he alleges, “Mr. Klein knew Mr. Nars was not responsible for the artistry he knew to be central to the promotion, and Mr. Nars certainly knew the work he was pushing as his own was not his.” He also claims that their “conduct was materially deceptive and misleading,” especially since “99.99% of makeup purchasers would have believed that Mr. Mourabit’s work was Mr. Nars’ and, critically, that the make up being sold was used in Mr. Mourabit’s work: which it obviously was not.”

The makeup artists further alleges that “it is easy to understand Klein’s and Nars’s decision to fob Mr. Mourabit’s work off as Mr. Nars’ – both Mr. Klein and Mr. Nars knew that Mr. Mourabit was an infinitely superior makeup artist,” but asserts that such an “understanding does not excuse their conduct.”

For those wondering about the protectability of makeup designs: Much like how copyright law provides exclusive rights – such as the rights of reproduction, adaptation, and public display – to authors, painters, musicians, and choreographers, etc., for their original works, copyright law provides protection for original makeup design. You may recall the Southern District of New York’s decision in Carell v. Shubert, in which it held that the stage makeup featured in the Broadway musical Cats was sufficiently original and expressive to be protectable under copyright law.

As a result, Mourabit claims that just as Klein has rights in the images, he does, too. As a result, and in connection with his claims of copyright infringement and unfair competition, he is seeking damages of upwards of $6 million, as Nars and Klein have been “enriched by their use of [his] artistry to promote and build their collection” and he “was not compensated at all for the use of his work.”

* The case is Sammy Mourabit v. Steven Klein, Steven Klein Studio, LLC, Francois Nars, et. al, 155500/2018 (N.Y.Sup.).