Image Conscious

Kylie Jenner Faces a Lipsmacker of a Copyright Lawsuit

Artist Sara Pope has sued Jenner for copying her ‘Temptation Neon’ work—an image of strawberry-lacquered, neon-lined lips—in promotional materials for ‘Life of Kylie’ on E!

Kylie Jenner’s cosmetically enhanced lips are arguably her most valuable asset. Kylie’s Lip Kits, the premier product of her Kylie Cosmetics beauty brand, sold out within minutes of their online launch in November 2015.

Earlier that year, her plump pout had inspired a bizarre social media phenomenon, The Kylie Lip Jenner Challenge, with teens using shot glasses as lip-plumping suction cups to alarmingly swollen effects.

Two years later, her Snapchat makeup tutorials draw more than 10 million viewers, and the Kylie Cosmetics beauty brand has generated a reported $400 million in revenue since its launch.

But Jenner’s most recent attempts to further commodify her lips have provoked legal backlash. British-based artist Sara Pope has sued the youngest member of the Kardashian clan for copying her “Temptation Neon” work--a image of strawberry-lacquered, neon-lined lips--in promotional materials for her new Life of Kylie reality show on E!

The image circulated on Jenner’s social media feed and in other promo materials for her TV show is a near replica of Pope’s “Temptation Neon,” down to the the lip-biting tooth that draws blood-like drips of paint.

Filed Tuesday in California, the lawsuit claims copyright infringement and unfair use of Pope’s “Temptation Neon,” which it describes as “one of Pope’s most popular original works” and “one of the top Google searches for ‘neon lips’ at least since 2016.” The suit notes that Pope’s work “conveys glamour, intimacy, and sexual power,” themes which Jenner is building her brand on “at Ms. Pope’s expense.”

It also underscores Jenner’s “alarming” record of copyright infringement lawsuits.

Kylie and her twin sister Kendall Jenner were in legal hot water earlier this month after they featured images of rappers including Tupac and Notorious B.I.G. on T-shirts for their Kendall+Kylie clothing line without asking for rights to use the images.

The photographer who took them, Michael Miller, has sued the Jenners for statutory damages. (The sisters apologized in a statement on Twitter and the tees were pulled from their clothing line’s website.)

Pope is the second artist to accuse Jenner of plagiarizing lip imagery. Vlada Haggerty, a make-up artist, has called Jenner out on multiple occasions for copying or referencing her work without crediting her.

The first time, Haggerty claimed a look featuring gold-covered hands and ombré lips that she’d created for a photo series was replicated in a promo photo for Kylie Jenner Cosmetics’ holiday collection last year. In January 2017, Haggerty threatened legal action after Jenner posted another image of Haggerty’s work to Instagram--prompting Jenner to edit her post with a credit to Haggerty.

Haggerty’s lawyers claimed that “Kylie Cosmetics sells its products under a logo that is so similar to the dripping lip art that symbolizes Ms. Haggerty’s makeup that artist brand that she receives daily inquires as to whether she is associated with Kylie Cosmetics.”

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It’s unclear whether Haggerty’s suit is still pending, but Jenner may struggle to win the latest legal battle brought by Pope.

“Copyright doesn’t protect ideas but it does protect expression, and there are a lot of similarities between Pope’s image and Jenner’s beyond the idea of a neon mouth,” Robert Clarida, an intellectual property lawyer and author of the treatise Copyright Law Deskbook, told The Daily Beast. “This is a pretty strong case and one that would have to go to jury, and that’s bad news for Kylie because as a defendant you want to get it thrown out on a motion to dismiss or on summary judgment. But this case wouldn’t lend itself to that.”

Clarida cited similar cases that plaintiffs have won, including one case wherein a judge held Columbia Pictures responsible for copyright infringement of imagery from a New Yorker cover in the studio’s poster for “Moscow on the Hudson,” the 1986 comedy starring Robin Williams.

“I think the Pope’s and Kardashian’s images are even more similar,” Clarida said.

In another oft-cited infringement case, Coors Light was sued for copying a photograph featured in a 1999 issue of Sports Illustrated after a similar image was used in a Coors Light billboard advertisement several years later.

One issue in Pope’s case against Jenner is that the artist was approved for copyright protection of her work in May 2017, according to the lawsuit, which does not state when she filed for protection.

“If the filing date for protection was before the alleged infringement began Pope could get attorney fees and statutory damages,” said Clarida, though he noted that fine artists like Pope don’t generally file for copyright protection until after they notice that their work is been copied.

Reached by The Daily Beast, attorneys for Pope declined to specify whether she filed for copyright protection before or after Jenner and other defendants named in the suit began circulating promotional materials for Life of Kylie.

“As the lawsuit alleges, an unauthorized version of Sara’s original work, ‘Temptation Neon,’ was used without her permission to promote a new reality television show,” Pope’s attorneys said in an emailed statement. “This lawsuit is about protecting Sara’s work from copyright infringement.”

Jenner’s publicist did not return a Daily Beast request for comment.