Painting a perfect Mickey Mouse might earn you first place in a nail art competition, but it could also land you in legal hot water. Your nail art could be a copyright infringement.
Do you go loony over Wile E. Coyote? Do you think Campbell’s Soup looks Mmm! Mmm! Good! as nail art? Have you made Simba king of nail art? Many nail technicians enjoy reproducing popular images on nails, and their clients love wearing it just as much as the technicians love painting it. But did you know that reproducing proprietary images — such as copyrighted cartoon characters, logos, or service marks — is illegal?
“[Reproducing proprietary images] is an infringement of copyright law, trademark law, and the law of unfair competition,” says Nils Montan, vice president and senior intellectual property counsel for Warner Bros, in Burbank, Calif. “Fundamentally it’s copyright infringement in the sense that the characters belong to the studios that created and developed them and spent the money to make them the icons that they are.” The images are also covered by trademark law, explains Montan, because someone might believe you were licensed by the copyright owner when, in fact, you were not. “And the law of unfair competition basically says you can’t reap where you didn’t sow,” he adds. “You didn’t create the images so you can’t make money off them.”
Drawing Over The Line
Cartoon characters, logos, and slogans are examples of intellectual property — property that doesn’t have an actual physical presence. “Intellectual properly is made from creative effort. A copyright protects artistic works like designs, books, and films,” explains Montan. Examples of intellectual properties include sports terms’ logos, cartoon characters, and ad campaign slogans. “If you’ve seen it, it’s probably been copyrighted,” says Montan.
Just as you would protect your physical property from theft, holders of copyrights have to protect their intellectual properties from unauthorized use. “If a copyright is illegally used and that use is not challenged, the image falls into public domain [the copyright owner loses his or her exclusive rights and the image can be used freely by the public] because no one seems to care about ownership,” explains Chuck Champlin, communications manager for The Walt Disney Company in Burbank, Calif. Legalities aside, adds Champlin, it’s also a fairness issue. “When someone is making money from what we’ve worked hard to create, that doesn’t seem very fair,” he says.
When is it fair to use copyrighted materials or a trademark? According to .Montan, never. Champlin, however, admits that the law does allow some uses of the materials for artistic expression under fair use laws. However, he adds, “Fair use is pretty open to interpretation.” Montan and Champlin agree that nail technicians cannot re-create the images in competitions or for profit on clients’ nails.
Copyright owners vigilantly watch for copyright and trademark infringements and warn individuals and companies when they step out of bounds. For example, some large companies hire people just to scan magazines and newspapers for mentions of their brand names. Clorox, for example, sends warning letters to publications that use the brand name Clorox with a lowercase “c” or use Clorox instead of the generic term bleach. Likewise, those companies we spoke to say they would warn nail technicians caught re-creating their logos, trademarks, or copyrighted images on nails with a letter.
“We would send a cease-and-desist letter stating, ‘It’s come to our attention that you or your company are in violation of trademark laws. Please stop and nothing will happen,’” says Brian McCarthy, manager of corporate communications for the National Football League. If the nail technician continues to re-create a company’s images after being warned with a cease-and-desist letter, she could be sued by the copyright holder.
The only way to get permission to use the images is to be licensed by the company that holds the copyright or trademark. A licensee agrees to pay a percentage of his or her profits from the use of the image to the copyright holder, who also controls the quality of the products and images. While all three companies say they wouldn’t license individual nail technicians or salons to reproduce images, they would consider licensing a company to create nail decafs with their company’s trademarks. To date, they say, they aren’t aware of having ever been asked. Surely somewhere out there is an enterprising nail technician who won’t make them wait much longer