Kylie Jenner will likely face a legal battle over her wildly popular makeup line. The reality television star has been accused of misappropriating the imagery of Vlada Haggerty, a Los Angeles-based makeup artist, in connection with her Kylie Cosmetics collection. Much has already been made of Haggerty’s threats of litigation – which have since been confirmed by her counsel – and the potential success that she may have in connection therewith, but much has been left out of the discussion.

Of the existing information that has been published about the impending Haggerty v. Jenner legal battle, TMZ – which has taken to providing legal commentary it seems –  noted that while ideas are not protected by copyright law, the expression of such ideas is, in fact, protected. With this in mind, the celebrity gossip website asserts that Haggerty is without any merited claims against Jenner, as Jenner’s photos merely embody Haggerty’s ideas, such as the idea to depict metallic liquid dripping off of a pair of lips. What TMZ is missing here is that while Haggerty cannot claim infringement based on the copying of her ideas, she very may have a claim based on the copyright notion of derivative works.

For those who are not familiar with copyright law, it provides exclusive rights to the creators of “original works of authorship fixed in a tangible medium.” In short: Copyright law provides certain protections for those who create original photographs, books, poems, paintings, sculptures, song lyrics, etc. that have been put in a form that is more than merely transitory (aka: the photograph has been taken, the book written, the song lyrics written down, and so on). It is worth noting that in accordance with copyright law, the level of “originality” required for protection is rather low. 

DERIVATIVE WORKS

One of the specific rights that is afforded to copyright holders – in addition to the obvious right to prevent others from recreating and/or selling the copyright protected work – is the right to prevent others from making “derivative works” based on the copyright protected work. Derivative works are works of art based on or derived from one or more preexisting works.

It is here that Haggerty – whose own work was probably inspired by an iconic Guy Bourdin photo from the 1970’s (pictured below) but arguably different/original enough to warrant copyright protection of its own – likely has the greatest chance of scoring a legal victory in connection with Jenner’s alleged copying. In order for a derivative work to satisfy copyright law’s requirement of originality on its own (and thereby be clear of potential infringement claims), the latter work must contain sufficient new expression, over and above that embodied in the earlier work. It is very much up for debate (and a court to decide) whether Haggerty could successfully allege that Jenner’s images are derived from her original works. (Find more on derivative works, including three famous cases, here).

IMPENDING LEGAL ACTION

According to a statement from Stephen McArthur of Los Angeles-based McArthur Law Firm, who will represent Haggerty in the allegedly impending copyright infringement lawsuit, “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. 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.”

UPDATE (12/5/2016): As of Monday, the lawsuit had not yet been filed in court in Los Angeles.