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Big fashion companies stealing — or, ahem, being inspired by — the ideas of smaller designers or artists is nothing new. It happens every season at fast fashion retailers. In fact, H&M just weathered a public controversy in which it picked a legal fight with a street artist whose work the retailer used as a backdrop in an ad campaign. When the artist sent a cease-and-desist letter to H&M, the retailer turned around and filed a lawsuit against the artist, claiming that since street art was illegal, it wasn’t protected by copyright laws.
Welp, that backfired after a social media campaign to boycott H&M picked up steam; the company dropped its suit and apologized the very next day.
Now it’s happening in the beauty world, in an artistic medium that is arguably even more fleeting than paint squiggles on a wall: nail art. Park Eunkyung, a well-known Korean nail artist and owner of the Seoul-based salon Unistella, has accused drugstore nail polish brand Sally Hansen of copying her nail designs. Sally Hansen, which is owned by US beauty conglomerate Coty, just released nail stickers featuring three designs, including glass nails, diamond nails, and wire nails. The company also gave the stickers the designation “K-design.” On the brand’s page, it says, “This limited-edition collection captures the style and essence of Korean Beauty, which has garnered over 1M posts on Instagram under #KBeauty.”
Park became well-known in the US in 2015 as a result of her glass nail designs at the height of the Korean beauty craze. As the name suggests, the art looks like shards of glass on nails. The effect is achieved by gluing pieces of cellophane to the nail in distinctive patterns. The design was covered by pretty much every single mainstream beauty and lifestyle publication and credited to her. She made multiple trips to the US to meet beauty writers and fans, and her designs are still celebrated and documented in the beauty press regularly. Later that year she even released her own line of glass nail stickers in collaboration with Modi. In 2016 she popularized diamond nails, using holographic foil to achieve a faceted look. In early 2017, she debuted wire nails, using thin pieces of actual wires to frame the nails and create patterns on the nail beds. In early 2017 she collaborated with nail salon Dashing Diva on a line of press-on nails.
Park reached out to Racked about the Sally Hansen designs via a friend who acted as an interpreter. She says that in October 2017 she had been in talks with Sally Hansen for a “collaboration,” something she also contends on an Instagram post from today. According to portions of emails shared with Racked, Sally Hansen seemingly proposed that she work in a public relations capacity to create nail looks with Sally Hansen products; consult on product development, trends, looks; and “co-create a product or ... consult longterm/upstream product innovations.” She sent a reply back stating that she wanted to discuss it more, but was open to working with the brand. She then got a reply stating that the brand would follow up and “find a way to work together,” but says she never heard anything until she saw the stickers last week.
When Park saw the nail stickers, she again reached out to Sally Hansen to question the company. According to an Instagram story she posted yesterday, the brand’s response was: “The designs we launched as part of this collection are not your designs. As I’m sure you are aware, basic shapes such as hearts, lips and wavy lines, or patterns resembling broken glass, are not ownable.”
Sally Hansen provided the following statement to Racked: “Recently, we launched a K-Beauty Design Kit, a trend-driven product we’re proud of and one that has been in the making for quite some time. Any time we develop a new product, we look for emerging trends and at many sources. We consult third-party trend forecasts, work with internal and external creative teams, seek the advice of suppliers, and employ extensive social listening methodologies. As a top nail design influencer, Eun Kyung was certainly an inspiration, as she is for the entire nail art world. But she was not the only, nor the first, source of excitement around these trends that have more than 125,000 references on Instagram alone, with posts dating as far back as 2012. We admire Eun Kyung’s talent and are sorry if she feels anything less than our admiration for her work.”
Susan Scafidi, an attorney and the academic director of the Fashion Law Institute at Fordham University, says she has seen this scenario happen over and over again in fashion. “It is always extremely unfortunate and really frankly dishonest on the part of the company,” she says. It’s an emerging issue in the beauty industry. Scafidi thinks Park may have a case against Sally Hansen, based on two intellectual property concepts.
“At least some of these designs are intricate enough that they could be subject to copyright protection. Beyond that, the most recognizable designs, which seem to be those that Sally Hansen is using, could also be subject to trade dress protection,” Scafidi explains.
Scafidi notes that copyright protection is “essentially universal” and does not require any formal registration. It protects artistic works and literature, and according to the US government’s copyright FAQ page: “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” (Like, uh, Instagram.)
Scafidi says that over time the legal world has expanded the scope of what is considered art. “And now we’re moving to think potentially about nail art in the same way, which is kind of fascinating. It comes from no less creative a place and therefore seems to be very clearly a tiny work of art, albeit one designed to be removed after a week or so.” Even though Park is based in Korea, copyright protection extends to her there, though a legal path for her would be easier if she officially registered.
Then there’s the trade dress argument. “Given the fame of the Unistella line and Eunkyung herself, some of those designs in those photographs are so well known that they are immediately associated with her by consumers, particularly the broken glass design. When we have a design so easily associated with an individual source, then that design itself can serve as a trademark much the same way a name or logo can serve as a trademark. It’s a subset of trademark law referred to as trade dress,” Scafidi says. Trade dress applies to something like Louboutin’s red soles or Hermes’ distinctive bag shape — a quality that is inarguably associated with a particular brand or company. (The Fashion Law blog has a thorough explanation of trade dress here.)
“To the extent that Unistella could show that the relevant subset of American consumers associate something like that broken glass nail art with that particular origin, then they have a strong claim for trade dress. In fact, I would say that probably Unistella’s best argument for — pardon me! — nailing Sally Hansen to the wall is trade dress in this case,” Scafidi says.
Park, who admits on Instagram she doesn’t quite know what her rights are in this situation, is seemingly going to first attempt to litigate this all via social media, a tactic that Scafidi says frequently works for indie artists with limited resources. She wrote a long note on her Instagram to Sally Hansen, expressing disappointment that she wasn’t involved in the process.
“The fact that the [two parties] were in talks, the fact that Sally Hansen clearly wanted to reference K-beauty with its ‘K-design’ name really underscores that Sally Hansen at some level admits that they’re making a specific reference,” says Scafidi. “I think that if social media doesn’t do the job for Unistella, then there is more traditional legal recourse as well.”
Makeup and nail artists, whose professions were historically largely behind-the-scenes, now have a huge and visible platform for their work, thanks to Instagram and YouTube. It also opens up potentially new IP issues. In the last two years, makeup artist Vlada Haggerty tussled with several Goliaths in the beauty industry over claims that they stole her distinctive “lip drip” and other designs. She made accusations against Kylie Jenner on several occasions and against Make Up For Ever for using imagery that looked strikingly similar to hers. In that last case, she retained a law firm.
“It may be challenging to attempt to create something new, but once it’s created, it all seems as if it were so easy and simple,” Park says in an email. “Hard-working artists like myself who rise up to that challenge should not be discouraged and have to have their work stolen away like this.”
Updated April 3rd at 6:00 pm: Target.com has apparently removed the stickers from its site, according to an Instagram posted by Park last night. When reached for confirmation, a representative from Target declined to comment because the “situation is regarding a vendor.”
Updated on March 29th at 6:25 pm. Information about 2017 Dashing Diva collection added.