1992-
In the summer of 1981, Stuart Leslie Goddard, better known as Adam Ant, the lead singer of the British new wave glam-punk band Adam and the Ants devised a new look for himself. The look appeared in connection with the release of the band’s third record, called Prince Charming. Goddard, a former student at Hornsey College of Art, made sketches of his look inspired by the eighteenth-century Parisian dandies known as Les Incroyables and by facial markings that he had seen in the Museum of the American Indian in New York. The makeup consisted of two red and one light-blue greasepaint lines running diagonally from nose to jaw on one cheek. It also included a heart over the left eyebrow, and a beauty spot by the left nostril. The Merchandising Corporation of America commissioned Allan Ballard, a well-known photographer, to take a series of photographs of Adam and the Ants in the Prince Charming look. They owned all of the copyrights to these photographs and exploited them by licensing reproductions of the photos in publications.
Harpbond, the publisher of the magazine Pop Tops Rock Star News, had licenses in order to publish photographs of Adam and the Ants in the old look. In the look from 1979, Adam Ant wore a white greasepaint line that ran from one ear to the other, crossing his face in the region of his nose. In 1981, refusing to take a new license for the new look, Harpbond took an existing photograph of Adam Ant with his old makeup and got someone to remove the white line and put on the new makeup via photomontage. It was then printed inside a poster magazine titled Prince Adam next to a drawing of Adam Ants’ new look, which they commissioned from the illustrator Frank Langford.
Subsequently, Merchandising Corporation of America sought relief for copyright infringement of Goddard’s makeup and sketches and Ballard’s photos. On November 25, 1981, the case Merchandising Corporation of America and others v. Harpbond and others was heard at the High Court of Justice, Chancery Division, in London. Judge Walton stated:
So far as infringing any copyright in the sketch is concerned, it is quite clear to me from inspection that nobody would take the altered photograph as having been copied from the sketch. [...] It is also suggested that there is an infringement of the copyright photograph [...] I do not think that the additions thereto to bring it up to the new look in fact breaches any copyright. [...] Having looked very carefully at the drawing by Mr. Langford, I do not think that it breaches any copyright. [...] [We were] unable to find any case in which what one might describe as “make-up” of this nature had been protected by copyright [...]. It seems to me that his case on this point raises a question of an entirely novel, nature, which [...] deserves consideration by a very high court indeed.
The court declined to find copyright infringement. Merchandising Corporation of America appealed these findings. On December 16, 1981, the case Merchandising Corporation of America and others v. Harpbond was heard at the Supreme Court Judicature. Judge Lawton stated:
It is said, so far as the make-up aspect of the submission is concerned, that the make-up is covered by section 3 of the Copyright Act 1956. [...] [T]hat the marks on Mr. Goddard’s face by way of facial make-up were painting. That caused me very considerable surprise, because, although there are various statutory provisions in the Act defining various words used in it, there is no statutory definition of a painting. [...] [I]t was fantastic to suggest that make-up on anyone’s face could possibly be a painting. [...] [A] painting must be on a surface of some kind. The surface upon which the startling make-up was put was Mr. Goddard’s face and, if there were a painting, it must be the marks plus Mr. Goddard’s face. If the marks are taken off the face there cannot be a painting. A painting is not an idea: it is an object; and paint without a surface is not a painting. Make-up, as such, however idiosyncratic it may be as an idea, cannot possibly be a painting for the purposes of the Copyright Act 1956.
The court dismissed the appeal and concluded that the Prince Charming facial makeup couldn’t be protected as a work of art.