Image: via complaint

For the past 4 years, Milk Studios has made industry headlines for its ability to lure in consumers – from Billie Eilish to edgy young men – with its eponymous makeup brand. From its multi-purpose lip and cheek stain sticks to its kush mascara and vegan milk moisturizer, the buzzy direct-to-consumer brand – which has since teamed up with the likes of Sephora and welcomed minority-stake funding from Seoul-based conglomerate Amorepacific – fits neatly into the growing market of beauty startups that are giving established giants a run for their money. 

Behind the scenes of the rise of this burgeoning beauty success story is a less attractive picture, according to photo agency August Image. In the copyright infringement complaint that it filed in a New York federal court last week, August Image – which reps a roster of established photographers – claims that Milk Makeup is engaging in an “intentional and systematic scheme to capitalize off of artists’ works of value without crediting or paying them.” 

August Image asserts in the newly-filed case that “only days” after “prominent beauty  photographer” Troy Covey launched “a photographic campaign called ‘beauty. for everyone’” in late April 2019, Milk hijacked one of Covey’s photos of “a freckled face model wearing pink lipstick, while clasping her hands beside her face in a stylized pose.” More than merely “reproducing, publicly displaying, and distributing” Covey’s photo on its Instagram account “for purely commercial advertising purposes,” August Image argues that Milk “superimposed advertising links for its products” across the photo. 

“Importantly, Milk did so without giving any credit to Covey as the author of the photo, which it could have easily done with a ‘tag’ or ‘#’ link, among other things,” August Image claims. (This is an interesting point, as it is not actually that important whether Milk credited the author, as doing so does not absolve a party from copyright infringement despite the widespread belief to the contrary. In reality, a party engages in copyright infringement when it publishes/reproduces another’s photo without authorization regardlessof whether it gives credit to the author). 

New York-based August Image, which is the exclusive licensing agent for Covey, says that it contacted Milk within a matter of days of discovering its use of the image to alert the beauty brand of the infringement and inform it that “it would need to pay a fee for its continuing use of the photograph and a fee for its prior and current use.” In response, “Milk admitted that it ‘fumbled,’” claimed that its use of the image was a “harmless error,” and said that it “would only pay a nuisance fee of $2,000 … because it had taken down the post,” August Image states in its complaint. 

image via complaint

Unsatisfied with that, August Image argues that Milk’s unauthorized posting of the image was “neither harmless nor the result of error … [as] if it were error, it would not be repetitive,” and asserts that “a year prior, on or about June 9, 2018, Milk reproduced, publicly displayed, and distributed an original photograph taken by [another one of the photographers it represents], Tamara Williams of a model wearing purple eyeshadow gazing deeply into the camera.” Just as in the case “with its unauthorized use of Covey’s photo, Milk did not ask for authorization and did not make or attempt to make payment to Williams for its brazenly commercial and advertising-related use of [her] photo,” per August Image. 

Hardly a “harmless error,” August Image argues that “with the exception of [truly] iconic [images], the value of most photographs is at its peak when it is first published to the largest audience available, but it quickly loses its value after it is published because the ‘moment’ has passed and it has already been seen.” 

“What was once fresh becomes stale, what was once viral becomes passé, especially in our current fast-news culture (political, popular, cultural, or otherwise),” the photo agency asserts. “Once [Milk’s] 1.8 million users viewed Covey and Williams’s photographs, the photographs lost a significant portion of their value that … cannot be reclaimed.” 

Such behavior is particularly egregious, per August Image because “Milk is a sophisticated company” that has “developed a comprehensive terms of use policy that is publicly available on its website” and that includes language that shows that “Milk not only understands copyright laws, but that it is vigorously protects and enforces its own copyrights.” Nonetheless, August Image argues that “Milk does not show the same respect for the intellectual property of others” and is, instead, “willfully and intentionally violating these laws each time they use photographs without authorization and with paying for their use (and in its case, highly profitable commercial use).”

With the foregoing in mind, August Image is seeking immediate and permanent injunctive relief to bar Milk from engaging in such infringing behavior, and an monetary damages, including “actual damages and disgorgement of all profits derived by Milk from its acts of copyright infringement and to reimburse Milk for all damages suffered by August by reasons of Milk’s acts.” 

Finally, August Image has asked the court for the entry of a seizure order “directing the U.S. Marshall to seize and impound all items possessed, owned or under the control of Milk … which infringe upon the photographs, including but not limited to any and all advertising materials, print media, web sites, domain names … bearing any materials which infringe upon the photographs as well as all business records related thereto.”

A rep for Milk Makeup did not respond to a request for comment. 

*The case is August Image, LLC v. Milk Makeup, LLC, 2:20-cv-00756 (C.D.Cal.).