A battle over fake eyelashes has erupted between luxury lash company Lashify and an at-home-beauty entity that has allegedly taken to “blatantly copying” Lashify’s patent-protected system and offering it up for cheap. In the patent infringement lawsuit that it filed in a New Jersey federal court on Wednesday, Lashify alleges that fellow beauty company KISS is “willfully and unlawfully making [and] selling … artificial eyelash extension systems and components … designed by copying Lashify’s revolutionary, award-winning eyelash extension system.” 

According to its newly-filed complaint, Lashify claims that founder Sahara Lotti invented a “revolutionary” luxury lash extension system that enables individuals to skip pricey and time-consuming salon services and create their own “natural-looking false lashes” at home. In addition to amassing a sizable customer base and celebrity fans like Reese Witherspoon, Nicole Kidman, Kourtney Kardashian, Tracie Ellis Ross, and Salma Hayek, among others, the 3-year old company maintains an array of utility patents that cover its novel process for applying the lashes and for the technical aspects of the lashes, themselves, as well as design patents for the appearance of its various tools. 

“Unsurprisingly, albeit unfortunately, Lashify’s innovative system attracted not just a loyal customer base, but also copycats seeking to profit from the fruits of Ms. Lotti’s hard work and dedication,” Lashify asserts. Among those alleged copycats? KISS. “One of the world’s largest artificial strip lashes and nails companies,” 31-year old DIY beauty brand KISS launched “Falscara” in January 2020 (“years after the launch of Lashify”), a collection of products that amounts to a “willful copy [of] Lashify’s technology without license, permission, or authorization to create its knock-off product,” according to Lashify. 

“With full knowledge” of Lashify’s products, given that KISS employees allegedly “ordered Lashify products for shipment directly to KISS’s headquarters,” and gven that “KISS approached a factory that manufactures Lashify’s products with an intent to learn information about Lashify’s products,” Lashify claims that KISS “provides nearly identical instructions” with its “copycat” Falscara products, thereby, instructing “users to follow exactly every step in Lashify’s patented process.” 

Lashify claims that KISS offers a “system [that] is nearly exact” to its own, and products – namely, a $19.99 set of “lashes, applicator, bond, and sealer” – that are also “nearly identical” to its own $145 set of the same four products. As for the lashes, themselves, Lashify alleges that just like it does, “KISS offers 3 styles of lashes to be placed under a natural lash line, which are designed to provide the same looks and … are made of similar fibers using similar technology.” 

In a nod to the alleged level of similarity between its offerings and those of KISS, Lashify claims that “beauty writers, influencers, and customers refer to KISS’s copycat Falscara as a ‘dupe’ of Lashify’s system.” Beyond “intentionally copying the look and feel of Lashify’s products, including Lashify’s design, packaging, and presentation” and thereby, “seeking to ride Lashify’s coattails,” Lashify claims that KISS has run afoul of the law by infringing two of its utility patents (no. 10,721,984 and 10,660,388) – both of which cover “artificial lash extensions.” (Note: despite the use of language and image ry that might suggest otherwise, Lashify does not make trade dress infringement or design patent infringement claims).

Lashify alleges that “use of KISS’s accused products according to their intended purpose meets each and every limitation of at least claim 1 of the ’388 patent,” noting, for example, that the “accused products include a set of heat-fused lash extensions designed to be applied to an underside of the user’s natural lashes in the manner set forth in the ’388 patent.” More than that, Lashify claims that “KISS also contributorily infringes the ’388 patent by selling or offering to sell infringing products, such as the [Falscara] products, knowing them to be especially made or especially adapted for practicing the claimed invention of the ’388 patent and not a staple article or commodity of commerce with substantial non-infringing uses.”

Despite putting KISS on notice on more than one occasion by way of cease and desist letters, Lashify claims that KISS “ignored its requests to cease and desist its unlawful proliferation of copycat products” and instead, continued to sell the products that it “designed [in order] to reap the benefits of Lashify’s intellectual property, goodwill, know-how, and ingenuity.” 

With the foregoing in mind, and in an attempt to “not only protect its own innovations, but also to protect further innovation in the beauty industry – innovation that otherwise would fall victim to the unfair and unlawful conduct of companies like KISS,” Lashify sets forth two claims of patent infringement, and is seeking injunctive relief to bar KISS from making and selling the allegedly infringing products and monetary damages.

Lashify’s suit comes just months after it filed a similar suit in China against Qingdao Hollyren Cosmetics Co., Ltd., arguing that the Chinese cosmetics manufacturer is infringing its patent-protected eyelash-applicator wand, for which it maintains protection in China. 

A representative for KISS was not immediately available for comment. 

*The case is Lashify, Inc. v. Kiss Nail Products, Inc., 2:20-cv-10023 (D. N.J.). 

Coty and Kylie Jenner want the trade secret misappropriation and tortious interference lawsuit that Seed Beauty filed against them to be handled out of court and within the confines of confidential arbitration. Pointing to an arbitration clause in the agreement that Jenner entered into with beauty brand incubator Seed in 2016, just after she first launched her now-$1 billion-plus Kylie Cosmetics collection (via her Lip Kits range), Coty and Jenner – or better yet, Jenner’s corporate entity King Kylie, LLC – argue that the court should toss the case out in favor of arbitration. 

Given that the contract that Jenner and Seed entered into in connection with Seed’s creation, manufacture, and sale of Kylie Cosmetics contains a provision that mandates that disputes arising in the course of their deal be handled by way of arbitration, if such a disagreement between Jenner and Seed comes about, the parties would generally be unable to pursue the case in court. There is a potential wrench in the works in terms of that otherwise straightforward arbitration mandate, however, as the legal dispute is not just between Jenner and Seed (i.e., the two parties to the contract). It also involves Coty, which acquired a majority stake in Jenner’s beauty brand in November 2019 and is named as a defendant. 

Coty’s involvement is significant because unlike Seed and King Kylie, it is not party to the arbitration clause-containing contract. (The nature/terms of the contract, itself, are unclear since both Seed’s complaint and Coty’s motion are heavily redacted). 

Given that Coty acquired its $600 million stake in Kylie Cosmetics years after Jenner first teamed up with Seed, Coty is not a signatory to the Kylie/Seed contract, which includes the arbitration agreement. But … that is not a problem, according to the motion to compel arbitration that Coty filed late last month on the heels of Jenner’s team filing a similar motion. In Coty’s filing, the beauty giant argues that it may not be “a party to the [agreement between Seed and King Kylie], but California law is clear that Seed’s claims against Coty in this action should, nonetheless, be compelled to arbitration pursuant to” the parties’ arbitration agreement because Seed’s “claims against Coty rely on or are intimately intertwined with [agreement between Seed and King Kylie].” 

Citing California’s “equitable estoppel doctrine,” counsel for Coty argues that Seed’s case should be arbitrated (as opposed to being decided by way of a jury trial), as the law provides that a party to a contract containing an arbitration provision – King Kylie and Seed, here – is legally prevented from refusing to arbitrate a claim against a non-signatory to that contract – Coty – “when the claim against the non-signatory ‘derives from, relies on, or is intimately intertwined with the subject contract containing the arbitration agreement.’” 

In short: Seed cannot refuse to arbitrate its trade secret misappropriation and intentional interference with contract claims against Coty because both of those claims are directly related to the aforementioned deal that Seed entered into with Jenner. 

In addition to the contractual interference claim that Seed set out against Coty, which Coty says “relies on and refers to” the Kylie Cosmetics deal between Seed and King Kylie, Coty claims that Seed’s trade secret misappropriation claim is also inherently tied to that same deal, thereby, making it arbitrable, as well. 

After all, as Seed asserted in its complaint, by acquiring Kylie Cosmetics in November 2019, Coty “induced King Kylie’s breach of its [non-disclosure obligations with Seed]” by getting King Kylie to share proprietary and confidential information that is essential to the working of Seed’s “unique business model.” In doing so, Coty “disrupted” King Kylie’s existing non-disclosure obligations to Seed as outlined in the contract at issue. 

Pointing to an array of California state case law, Coty asserts that the equitable estoppel doctrine “applies equally to tort and contract claims brought against non-signatories,” such as itself, and that “as the case law makes clear that ‘claims of tortious interference with contract, as Seed alleges here against Coty, are particularly well suit for imposing equitable estoppel against the signatory: But for the contract containing the arbitration clause, there would be no breach and no claim for interference.” 

Coty further claims that “California courts routinely apply the equitable estoppel doctrine to trade secret misappropriation claims against non-signatory defendants,” and thus, the court should apply the doctrine here to compel the case “in its entirety” to arbitration and stay this action pending resolution of the arbitration. 

*The case is Seed Beauty LLC and Beta Beauty LLC, v. Coty, Inc., HFC Prestige Products, Inc., King Kylie, LLC, 20VECV00721 (Cal.Sup.). 

The skincare market is growing increasingly more competitive, particularly in recent years as certain demographics, such as Gen Z and millennials, prioritize wellness, clean beauty, and the adoption of more proactive skincare regimens (complete with buzzy ingredients, such as niacinamide, hyaluronic acid, and various different vitamins) over traditional makeup and beauty products. One need not look further than Glossier, the millennial-favored unicorn beauty brand – whose motto is “skin first, makeup second” – to see this sizable shift in practice. 

Against this background, well-established cosmetics giants and burgeoning new companies, including many direct-to-consumer startups, are busy creating and/or adapting to new trends to cater to consumers and their changing tastes in the $507 billion global cosmetics market. While the value of the market as a whole comes from a number of different segments and product categories (skincare, for instance, is estimated to be worth nearly $135 billion as of 2018), a relatively small handful of rival companies – including L’Oréal, Johnson and Johnson, Shiseido, Estée Lauder Companies, Unilever, Coty, and Procter & Gamble, which collectively own more than 200 of the most recognized beauty brands in the world – have traditionally been responsible for the majority of the revenue in this space. 

The seemingly endless array of heavily-marketed products, the emergence of a pool of powerful indie brands, the explosion of billion dollar M&A deals, and the sheer level of cosmetics sales being generated on an annual basis (largely by the same handful of companies) shed light on just how competitive it can be for companies in this market.

“In order to maintain a position in the industry, companies – whether they are new, rising or established – benefit significantly from their arsenals of intellectual property rights,” according to Dilworth IP’s Shin Hee Lee and Anthony Sabatelli. What exactly are they referring to? Everything from trademark-protected brand names and logos (and even product packaging and colors in the case of Glossier) to patented – and maybe trade secret-protected – formulas for the products, themselves. These things are at the heart of what enables companies to distinguish themselves and their products from rival companies in a crowded market, and so, it makes sense why companies are looking to claim exclusive intellectual property rights in them.

There is obvious inventive for brands to establish trademark-protected brand names, logos, and product packaging (the latter of which continues to prove important in the beauty and the direct-to-consumer spaces) when it comes to consumer goods. After all, strong trademark rights and the relevant goodwill that goes along with them enables consumers to distinguish among – and prioritize – certain companies’ products over those of others. As of June 2018, trademark filings for cosmetics (i.e., those in Class 3) were on the rise, with giants like L’Oréal among the top trademark-filing parties in the world; L’Oréal filed a total of 189 international trademark applications in 2019, for example, up from 169 a year earlier.

Patents in Particular 

L’Oréal’s filings also indicate another core area of importance for brands in the cosmetics/beauty space: patent protection. Looking beyond trademarks, companies, such as L’Oréal, are also relying heavily on patent protection to bolster their offerings. The French company revealed in its 2019 annual report that it registered 497 patent over the course of the year. That figure is just down from 505 patents registered in its name in 2018. 

Lee and Sabatelli concur, saying that there “is currently an overwhelming number of [cosmetics-related] patents” being filed by companies and granted by the U.S. Patent and Trademark Office. Unsurprisingly, given the growing demand over makeup goods, skincare-related products “are among some of the most heavily sought out” when it comes to patents, as the majority of these products consist of “unique compositions of known or novel ingredients” that neatly fall within the bounds of a utility patent. (Utility patents protect any novel, non-obvious, and useful machine, article of manufacture, composition of matter or process, while design patents essentially protect the way a product looks).

In addition to products with a pure anti-aging focus, which are regularly the subject of patent protection, the relatively recent rise of clean beauty products has prompted new brands to enter into the market and seek protection for their products. It has also pushed existing brands to reformulate their products, and file patents for new, plant-based components. 

At the same time, another area of “intense patent activity” in this arena has come hand-in-hand with the rise of cosmetic devices, with these products being “increasingly commercialized and patented” (both on the basis of how they look and how they work), according to Lee and Sabatelli, as companies look to enable consumers to bring such technologies into their daily skincare routines. “One of the pioneers that popularized hand-held devices” is, of course, Pacific Biosciences Laboratories (“PBL”), which is better known as Clarisonic. The company, which was acquired by L’Oréal in 2011 and revealed this month that it will shutter, is famous for its iconic cleansing tool that consists of a mechanically rotating face brush that oscillates back and forth over the skin, enabling users to clean and exfoliate. 

As of 2018, Clarisonic maintained some 40 patents (and alleged trade dress protections, as well) for its various devices, enabling PBL to successfully file suits against copycats across the globe, including in the U.S. In 2012, for example, a federal jury in Seattle sided with PBL and awarded it nearly $12 million in damages in the case that it filed against Nutra Luxe MD for allegedly selling infringing versions of its acne-specific cleansing brush. Meanwhile, in 2017, the International Trade Commission issued a General Exclusion Order in PBL’s favor, thereby prohibiting “all imports, sale for importation, or sale within the United States after importation of electric skin care devices, brush heads, or kits” that infringe a couple of PBL’s patents. 

While Clarisonic may be shuttering, the global beauty devices market still represents a $74 billion-plus opportunity, according to CB Insights’ Industry Analyst Consensus – from “standalone apps and devices,” such as LED masks and microcurrent facial tools, to the “connected beauty systems” that brands are building in order “to personalize skincare treatments, gather behavioral data on shoppers, and encourage loyalty within brand-powered skincare ecosystems,” and it is a magnet for patent protection. Neutrogena, for instance, sells a “small, portable stick that treats acne using phototherapy,” while Southern California-based LightStim’s LED gadget “emits UV-free, beneficial light energy to the skin” to reduce wrinkles, redness, and/or acne depending on the color of the light. Both of those products are protected by patents.  

Due to the often-extensive research and development required to develop complex cosmetics products (whether they are devices or proprietary anti-aging formulas), the companies selling them often seek out patent protection in order to give themselves a period of exclusivity – generally 15 and 20 years, respectively for utility and design patents – during which time they will ideally recoup some of the costs associated with the intensive research and development that goes into designing and manufacturing the products. 

Lee and Sabatelli expect that skincare patents, including design patents in the swiftly growing devices segment, will “continue to increase in the coming years.” This is almost certainly to be the case as consumers potentially look to avoid post-COVID-19 beauty appointments in favor of using new technologies in their own homes, and as companies race to innovate (and protect their innovations) in order to win over consumers in new ways and to stand out in this ever-burgeoning market. 

China has overhauled a 30-year old law governing beauty products and cosmetics, as the market for these goods continues to surge each year. To give some perspective to that growth: retail sales of cosmetics in China – from native Chinese companies to the cosmetics divisions of Western luxury goods purveyors, skincare companies, and big-names in beauty goods – increased by approximately RMB 40 billion ($5.72 billion) between 2018 and 2019, alone, valuing the market at a whopping RMB 300 billion ($42.91 billion) or more as of last year. Such growth has not escaped the attention of regulators, who released the new Cosmetics Regulation on June 16, 2020. 

Taking effect on January 1, 2021, the new regulation makes a large number of changes to the previously existing law – from the inclusion of e-commerce-specific updates to addressing how the process of gaining approval for new ingredients will be handled, all of which place an emphasis on compliance throughout the entire life cycle of individual cosmetics and beauty products, and increases responsibilities of cosmetic license holders to ensure product safety and quality for the ultimate benefit of Chinese consumers. 

A few of the key elements of the regulation (for native Chinese and international companies, alike) are highlighted below …

Enhanced Compliance Obligations for License Holders

The soon-to-be-implemented regulation places significant requirements on cosmetic license holders, making them responsible for compliance obligations related to the cosmetic products they make and sell. For instance, cosmetic license holders are required to establish a quality assurance system and an adverse event monitoring and evaluation system to ensure quality and safety of their products throughout the product lifecycle. 

Companies are also responsible for designating individuals within their ranks to specifically manage quality control and the distribution of products, and are required to publish evidence and reference documents on a government-designated website to substantiate and support claims they make about the functionality of their cosmetic products. 

For foreign license holders, the law requires that they designate a Chinese legal entity to handle the regulatory matters for them in China in relation to product registration or notification, as well as adverse event monitoring and recall reporting.

Stimulation of Innovation for New Ingredients

Under the current regulation, all new cosmetic ingredients are subject to a lengthy approval process. On the contrary, the new regulation requires only certain high-risk new ingredients (e.g., preservatives, sunscreen ingredients, colorants, hair dyes and whitening agents) to be approved by the regulatory authority. Applicants of other unlisted new ingredients only need to go through a simplified notification process.

The new regulation implements a three-year monitoring period for newly approved or notified ingredients. After the expiration of the three-year period, the relevant new ingredient can be listed in the Catalogue for Ingredients in Use, assuming a safety concern did not arise. 

New Rules for E-commerce Platforms

Online sales of cosmetic products are booming in recent years, which is why the new regulation includes specific e-commerce language, something that the regulation did not have prior to the recent overhaul. According to the new regulation, e-commerce operators should (i) record and verify the identity of cosmetic distributors or retailers that trade on their e-platforms; (ii) require that these distributors or retailers refrain from conducting any acts that would violate the regulation; (iii) report misconduct to the supervising authority; and (iv) suspend a distributor’s or retailer’s ability to engage in c-commerce services in connection with serious non-compliance. The new regulation also requires that cosmetics distributors and retailers to accurately disclose all the required information of cosmetic products that they trade on e-commerce platforms.

Outstanding Questions under the New Regulation

The new regulation redefines “special cosmetics” – i.e., ones that are subject to special or heightened regulations – as cosmetics used for hair dye, perm, skin whitening, sunscreen, anti-hair loss, and cosmetics with new functional claims. The regulations specifies what types of products fall within this realm to a certain extent. However, the scope of “cosmetics with new functional claims” awaits further interpretation by the regulatory authority. 

Impacts of the New Regulation

The new regulation’s emphasis on innovation and compliance may reshape the landscape of cosmetics industry. The shortened time to market of new ingredients brings opportunities to innovative cosmetic market players, while the increased responsibilities of cosmetic license holders and severe consequences for non-compliance will likely force cosmetic companies to improve their quality management system and perform their obligations more diligently through the product lifecycle.

Should companies fail to abide by the terms of the regulation, penalties can be levied upon foreign cosmetic license holders, as well as their Chinese designees. If foreign cosmetic license holders refuse to accept the penalties, their products could be banned from importation for up to 10 years. Meanwhile, if the Chinese designees fail to assist foreign cosmetic license holders in adverse event monitoring/reporting and product recalls, they may be subject to penalties such as corrective actions, fines up to RMB 0.5 million, or five-year prohibition from engaging in cosmetic businesses. 

Finally, the new regulation significantly increases administrative penalties for a variety of violations. for example, it imposes penalties of up to 15 to 30 times the illegal gains, a sharp uptick from 3-5 times the illegal gains under the current regulation. Moreover, the new regulation imposes personal liability on responsible corporate officers of an entity that violates the New Regulation. Such officers would be subject to fines up to five times his/her annual income from the non-compliant entity and lifetime debarment in serious cases.

Katherine Wang is a partner in Ropes & Gray’s life sciences group. (Edits/additions courtesy of TFL)

Steven Klein and Francoise Nars have prevailed in a case filed against them by makeup artist Sammy Mourabit. According to the copyright infringement suit filed in a New York state court in August 2018, Mourabit claimed that the famed fashion photographer and the makeup mogul used his work that appeared in a 2013 editorial in W magazine starring actress Juliette Lewis for the packaging and promotion of a collection with Nars without his permission, in furtherance of what Mourabit called “blatant and mendacious deception of the public and theft.”

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, Mourabit asserted in his complaint that Steven Klein and Francoise Nars “launched a line of makeup named after themselves.” The problem with that, according to Mourabit: the packaging and promotional materials for the collection made use of his work – namely, an image from the 2013 photo shoot – “without compensating him or giving him credit for his work.” Instead, of doing that, he claims Klein and Nars “fraudulently” presented the makeup designs as their own.

While Klein, as the photographer of the image, has exclusive rights in it in accordance with copyright law, Mourabit claimed that he also has rights in the photo, since he was responsible for the makeup design depicted in it. In his copyright infringement complaint, Mourabit pointed to a federal registration for a drawing of the makeup design that Lewis showcases in the photo – which depicts the actress with a glitter-covered face, bold eyebrows, and bold red glittered lips – as evidence of his rights in the image.

Following a back-and-forth between the parties (including Nars owner Shiseido), and a removal of the case from state court to federal court, Mourabit voluntarily dropped his copyright infringement claim in connection with the drawing of the makeup design. Thereafter, in a July 2019 decision, the U.S. District Court for the Southern District of New York granted the defendants’ motion to dismiss and tossed out the rest of Mourabit’s claims – state law claims of unjust enrichment, unfair competition, and violation of New York General Business Law – on that basis that they “fell within the preemptive scope of the Copyright Act.” 

According to the court, makeup artistry is a type of work that fits into the “pictorial, graphic and sculptural works” category of copyrightable works (and can be “fixed in a tangible medium of expression”). Moreover, because the rights (and remedies) that Mourabit was seeking in connection with his state law claims are equivalent to those provided by the Copyright Act, the state law causes of action are already covered by – and thus, are preempted by – his federal copyright infringement claim, which Mourabit had agreed to voluntarily dismiss.

On appeal to the Court of Appeals for the Second Circuit, Mourabit argued that his state law causes of action should not be preempted (and thus, tossed out). In furtherance of his argument, Mourabit walked back on his copyright claim, and instead, asserted that his makeup design work that appeared in the W Magazine photoshoot actually does did not meet the requirements for copyright protection to apply. To be exact, Mourabit argued that makeup artistry does not fall within any of the categories of copyrightable works set forth in the Copyright Act. Beyond that, he claimed that his makeup design, which appeared in the magazine editorial, “was not fixed in a tangible medium of expression,” which is a core prerequisite for copyright protection. 

In a decision last month, the Second Circuit disagreed with Mourabit on both counts. For one thing, the 3-judge panel for the court held that it does not necessary matter if Mourabit’s makeup artistry falls within any of the categories of protectable subject matter, as the scope of copyright preemption is “broader than the scope of copyrightable materials.” In order for Mourabit’s state law claims to be preempted by the Copyright Act, the court held that his makeup artistry only needs to fit into one of the those categories “in a broad sense,” which it does “because it is essentially a painting that is displayed on a person’s face,” and paintings clearly fall within the scope of copyright subject matter. 

The court concluded that Mourabit’s makeup design work “shares enough features with the category of pictorial, graphic, and sculptural works to fall within the ‘broad ambit’ of section 102(a) [of the Copyright Act] and, therefore, to be potentially subject to copyright preemption.” 

As for the fixation argument, in furtherance of which Mourabit asserted that human skin cannot qualify as “a tangible medium of expression,” and even if it did, the makeup that he designed and applied to Lewis’s face was not sufficiently permanent, the court held that since the makeup design was fixed in the photograph taken by Klein, there was no need to consider the merit of Mourabit’s two claims. “Although Klein, not Mourabit, took the photograph, that fact is of no import here because a work of authorship may be fixed ‘by or under the authority of the author,’” the court held, as “Mourabit plainly consented to the photographing of his work by Klein: after all, creating such a photograph was the goal of the photo shoot.” As such, “the fixation of his makeup artistry in the photograph occurred under Mourabit’s authority.” 

With the foregoing in mind, the court held the district court had properly dismissed Mourabit’s unjust enrichment and unfair competition/misappropriation claims as preempted, thereby, bringing the case to a close. 

As Mintz’s Susan Neuberger Weller and Paul Brockland state in connection with the Second Circuit’s decision, the question of whether human skin can be the kind of “tangible medium of expression” required for copyright protection remains unanswered. “The closest thing to case law on the issue,” they note, “is a 2011 preliminary injunction ruling from a federal judge that said the tattoo artist behind former professional boxer Mike Tyson’s famous face tattoo could likely win a copyright case against the producers of ‘The Hangover 2’ for stamping the same design on actor Ed Helms’ face for the film, but the case settled prior to an actual ruling.”  

For makeup artists who wish to amass copyright rights in their designs, Weller and Brockland encourage them to “create a drawing of the makeup design on paper prior to applying the makeup to a human, and to take a photograph of the design once applied to human skin.” They can then file for copyright registrations based on such drawings or photographs.

*The case is Sammy Mourabit v. Steven Klein, 19-2142-cv (2d Cir).