Thank you to Scrangie, who pointed out on Twitter yesterday that nail polish maker OPI Products Inc. appears to have filed suit against Transdesign, an online seller of nail polish, for copyright infringement. As many beauty aficionados know, Transdesign is a nice source of supply for OPI’s large nail polishes, because it has prompt shipping, a wide selection and low prices. Unfortunately, it doesn’t appear that OPI’s complaint against Transdesign is available online, so it is hard to tell what the heart of this dispute really is about.
Well, I did a little research. So the U.S. Copyright act says that the following categories of things can be protected by copyright law that are fixed in a tangible medium of expression:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
But none of those categories of things seem to be “nail polish,” “makeup” or “beauty related” items. Rather, these are expressive works, such as an artist, writer or even an architect or software programmer might create. Can one copyright a color? Or a paint (which is basically what nail polish is)? I know that we own the copyright to our photographs of nail polish. One might even be able to claim copyright protection to a particularly original application of nail art (similar to a painting by an artist). But to the nail polish itself?
As a next step, I looked on the U.S. Copyright Office website for registrations filed by OPI Products, Inc. and found about 19 entries:
Some of the registrations concern visual displays, photographs and textual material relating to their products. So here’s an example from the OPI Hong Kong collection: