“Ulta sole my artwork and put it on the packaging for a hair mask!” That is the central assertion in a new lawsuit filed by Amsterdam-based artist and designer Dominic Sebastian Metcalfe against the multi-billion dollar (and swiftly growing) beauty retailer that is Ulta. According to Metcalfe’s suit, which was filed in a New York federal court earlier this month, Bolingbrook, Illinois-headquartered Ulta is on the hook for copyright infringement, and potentially, a portion of the profits that it made in connection with its allegedly unauthorized use of Mecalfe’s work as a result.
Metcalfe – “a renowned graphical artist and designer whose work has been featured in advertising campaigns by international brands, including campaigns by Puma, Chanel, and Nike” – asserts in his suit that in 2012, he “created a series of two-dimensional graphical artworks under the name Holographic Melt,” and made them publicly available on his online portfolio, as well as on Tumblr. That is precisely how Ulta “had access to [the] artwork,” the complaint asserts, which it used without Metcalfe’s authorization on connection with its “Briteplex Unicorn Masques.”
In particular, Metclafe claims that “the elements, colors, composition, arrangement, layout, aesthetic, total look-and-feel, and appearance of [his] artwork and the artwork on [Ulta’s] infringing products are at least substantially similar,” giving rise to copyright infringement.
The complaint asserts that after Metcalfe discovered that Ulta was using his artwork on its products and alerted the beauty giant of his rights in the design, Ulta “slightly modified [the] artwork,” thereby, created a similarly “unlawful derivative of [Metcalfe]s] artwork and continued to use [the] derivative, which employs the same overall look and feel as the artwork, in connection with its products and packaging.”
While Metcalfe does not have a U.S. copyright registration to point to, the complaint asserts that Metcalfe “first published the artwork outside of the United States and is thus, exempt from the requirement that his work must be registered with the United States Copyright Office prior to the commencement of this action.”
With the foregoing in mind, Metcalfe is seeking a court order prohibiting Ulta from using the unauthorized artwork going forth, as well as an array of monetary damages, including the profits that Ulta made that are “attributable to the infringement of” his work.
This is not the first time that Metcalfe has made headlines in connection with his Holographic Melt works. Early this year, the artist called out Katy Perry and K-pop group SF9 for allegedly using the artwork for their respective albums without his authorization. Neither of those instances resulted in legal action.
A rep for Ulta was not immediately available for comment.
*The case is Dominic Metcalfe v. Ulta Inc, et al, 1:19-cv-02357 (SDNY).