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Second Cir. Punts on ‘Tangible Medium’ Issue for Skin Copyright

June 9, 2020, 9:30 PM

A makeup artist’s state law claims based on the alleged misuse of his work in a photo of actor Juliette Lewis was preempted by the Copyright Act, the Second Circuit said Tuesday. But it declined to address the novel question of whether human skin is a “tangible medium of expression” for copyright purposes.

The court said Sammy Mourabit’s artistry was “fixed” in the photograph regardless of whether it was “‘fixed’ in Lewis’s face for copyright purposes.”

Mourabit did Lewis’s makeup for a fashion photoshoot shot by Steven Klein. Shiseido Inc. used one of the photos to advertise a new makeup line, and Mourabit said the ads implied that another artist was responsible for his makeup artistry in the photograph.

Mourabit sued Klein, Shiseido, and others in New York state court for copyright infringement and brought state law claims including unjust enrichment and unfair competition. Shiseido removed the case to Manhattan federal court. Mourabit abandoned his copyright claim, but the federal court held his state law claims were nevertheless preempted by the Copyright Act.

The Second Circuit agreed that the state claims were preempted because they fell within the general scope of the Copyright Act. It rejected Mourabit’s argument that his makeup work didn’t meet the copyright requirement of being “fixed in a tangible medium of expression.”

“To our knowledge, no federal appeals court has addressed whether a human body part may qualify as a ‘tangible medium of expression,’” the court said. “We need not venture further into this uncharted territory, however, to resolve Mourabit’s appeal.”

Judges Barrington D. Parker, Denny Chin, and Susan L. Carney wrote the opinion.

Mark Warren Moody of Brooklyn, N.Y., represented Mourabit. Pelosi Wolf Effron & Spates LLP represented Klein. Ladas & Parry LLP represented Shiseido.

The case is Mourabit v. Klein, 2d Cir., No. 19-02142, unpublished 6/9/20.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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