In recent years, social media has emerged from being a platform of exchanging thoughts to an enormous arena that provides an array of creativity for sharing expression through inconceivable yet amusing ways. In our everyday use, we do not indulge in the underlying dynamics that make these social media owners the innovative rich moguls that they are. However, the conspicuous role of intellectual property law cannot be ignored. Snapchat is a platform that has gained recognition for its creative face filters and stories’ feature and made the sharing of photographs and videos aesthetically appealing. Over time, Snapchat has repeatedly been accused of stealing the works of various Instagram makeup artists to formulate its filters.[1] It is uncertain whether these artists could possibly sue for copyright infringement, given that such forms of makeup lack the element of ‘indefinite fixation to a tangible medium’ in order to achieve copyright protection.[2] On the other hand, it is yet to be determined if Snapchat filters can be deemed protected under copyrights, even though similar to makeup, they are also not fixed to the human face. This article will discuss why Snapchat filters may not qualify for copyright protection under the requirements of the subject matter intertwined with fixation and originality, in light of Pakistani law compared to the legal frameworks of the UK and the US. It will also be shown why granting copyright protection to these filters will lead to more problems and confusion as opposed to economic gain.
It has been suggested that Snapchat filters are ideas, so only the underlying source-code would be protected.[3] While it may be difficult to establish substantial copying of a source-code, it will, however, be easier to suggest that the filter is in fact an artistic work, hence copyright protected. The first question that needs to be considered is whether Snapchat filters fall within the ambit of protected subject matter under the law. Pakistan’s Copyright Ordinance 1962 protects all original and artistic works[4] as part of a closed-list system. Under the statutory definition, artistic works include the following:
“…a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possess artistic quality.”[5]
These works have not been defined individually and if this definition is applied strictly, it can exclude a wide range of works that should otherwise be considered artistic. Given the lack of Pakistani judgments on the subject of copyrightable works, case-law from the UK and US will be discussed which can act as persuasive precedent for domestic courts.
Snapchat filters do not fit neatly within the aforementioned definition of artistic works, however, an analogy may be drawn to the example of facial makeup. UK follows the closed-list system like Pakistan, so for something to qualify as artistic, it must fall within one of the categories specified as being protected. The English Court of Appeal has held that makeup cannot qualify as a painting because the former can be removed and is not permanently fixed to a tangible medium.[6] This case voices the importance of ‘fixation’ when determining the subject matter requirement. Similarly, it can be argued that a Snapchat filter cannot be constituted as a painting as it acts like makeup for the human face, which then becomes part of the photograph as an added effect. The photographs that entail these filters, however, could be protected as separate works, but that is not contentious since Snapchat gives ownership of such content to its users.[7]
Fixation in the Ordinance has been described as,
“…the incorporation of sounds or images…by means of which they can later be made aurally or visually perceivable.”[8]
Snapchat filters, in essence, are like digital floating designs which cannot be deemed to have been “incorporated” until they have been applied to the human face. Unlike Pakistan, the US follows the open list system, but adheres strictly to the requirement of fixation. Under US law, fixation must not only be “sufficiently permanent or stable” but also remain for “a period of more than transitory duration.”[9] This means that a work must not only be attached to a tangible medium, but should also remain attached perpetually for it to be considered fixed. This essentially depicts two requirements to constitute something as fixed, however, the US courts have developed two different approaches in determining if something is ‘fixed’ under the law.[10] The Second Circuit’s Cartoon Network test of the “duration requirement” requires a work to be embodied in a tangible medium first and then the embodiment to exist “for a period of more than transitory duration.”[11] On the other hand, the Ninth Circuit did not refer to this breakdown of the duration requirement in its judgment of 1993 and only considered whether the data in a computer’s Random Access Memory (RAM) had been “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[12]
It is pertinent to note that the entire communication over Snapchat is designed to be transitory in nature and subject to deletion or disappearance after a few seconds. The Snapchat filter, in particular, is created in such a way that it lacks any stable existence on a tangible medium to which it could be attached. It is applied to the human face for the purposes of photographs and videos, however, the human face may not constitute a tangible medium, given that these filters do not permanently become part of the face and remain as an added effect in the content that is created. It must be also be pointed out that the Second Circuit’s judgment is the more recent in time and, if strictly followed, will prevent Snapchat filters from ever having any copyright protection given their “ephemeral nature”.[13] Therefore, a Snapchat filter can be considered a transitory enhancement in a photograph or video that is made or saved and this content in turn belongs to the user. Perhaps this is why Snapchat gives ownership of such content, produced using the app, to its users.
Even in one of the earliest cases of fixation, the court held that the coin-operated video game in question had copyright protection for three separate elements, including the computer game itself, as well as the audio-visual effects shown during the game’s “attract” and “play” modes.[14] Consequently, the court decided that the “video game was permanently fixed on the computer chip and the audio-visual sequences in the game remained consistent throughout, regardless of the players’ controls and were hence protected.”[15] In this sense, the source-code of Snapchat filters can be deemed to be protected, but contention remains as to the consistency of these filters’ display. The aforementioned case provided a broad understanding of constituting fixation “by any method now known or developed later” when it said that such audio-visual effects were protected because of their repetitiveness and persistency during the game.[16] With this understanding, it can be argued that Snapchat filters do not change in their appearance and thus remain persistent. However, the problem with this argument is twofold:
- First, it seems unlikely that this will apply to Snapchat filters because, as indicated before, they do not become an expression until they are put on the human face (which belongs to the users), so the consistency in their design will be less relevant;
- Secondly, without a medium to be permanently fixed on, these filters are temporary and are mere designs, which fall within the ambit of patent protection and not copyrights.
Furthermore, in the famous case of Carell v. Shubert Organization, the court held that the makeup on characters of the Broadway musical Cats was protected because (a) it was an original work of art and (b) it was fixed to the bodies of the characters.[17] The work of makeup had been such that it was deemed to be permanently part of the characters’ bodies within the scope of the play and integral for their roles as cats. Perhaps this denotes a similar dynamic to the case of Lucasfilm v. Aismworth, in which the judges set themselves within the Star Wars universe to determine the functionality aspect of the Stormtroopers’ masks to qualify as a sculpture.[18] This case further underlines the utter need to fit something within the precise margins of works that are listed as protected subject matter in order to grant a copyright. However, the courts define the scope of these listed works by taking into account other considerations as well, such as economic value and related incentives. Following the same point, it was noted that there was pure economic value for the makeup design in Cats and “had the actors not donned the makeup designs that transformed each of them into human cats, the show would not have grossed a record $380 million in sales.”[19] Contrary to this, Snapchat filters are not applied by the users for economic value, they are merely used to enhance appearance for personal use or entertainment. Consequently, considering the aforementioned discussion regarding Carell that, “…if transitory duration’s functional standard dictates that the reproduction of a “pictorial, graphic, or sculptural work” must hold economic value to pass the fixation requirement,”[20] then Snapchat filters do not qualify for copyright protection.
It cannot be ignored that Snapchat filters are the result of some form of artistic work, but the law requires precise adherence to the limitations that it has provided for protection as such. Given the complexity of what can constitute artistic work, it may be argued that since these filters merely portray artistic appeal and not functionality, they should be protected as artistic works. The US Supreme Court has held that, under the ‘doctrine of separability’, artistic features must be physically and conceptually separable from the “utilitarian aspects of the useful article” and thereafter lack functionality to qualify for protection.[21] Unlike what this US case holds,[22] Snapchat filters are fixed to the human face instead of a “useful article” like clothing, so the doctrine of separability seems unlikely to apply. Moreover, for countries following the closed-list system, including Pakistan and the UK, the filter would need to fall within the categories specified as being protected artistic works, like paintings or sculptures. Therefore, the failure to meet the fixation requirement and the inability to fall neatly within the statutory definition of artistic works makes it even harder to grant copyright protection to Snapchat filters.
Last but not the least, when considering the originality element, it is required that a work be sufficiently creative in its “selection, coordination and arrangement.”[23] This is a wide interpretation given by the US courts, moving away from the “sweat of the brow doctrine”.[24] Recently, however, even the UK courts have been increasingly moving away from the requirement of “the author’s own skill, labour, judgment and effort” and towards the European Union’s stance of “the author’s own intellectual creation.”[25] Therefore, Snapchat filters can be argued to possess originality in their content due to their innovative features. Despite the criticism that Snapchat picks up various artists’ works to create its filters, it nevertheless presents that work in a significantly distinct manner so as to constitute “intellectual creativity”, hence diminishing possible infringement claims.[26] To reiterate, the creation of the filter itself is merely an idea, but the way it is expressed or formulated must be sufficiently distinct. This is similar to protecting only the precise arrangement of the data collected and not the act of data collection itself.[27] Therefore, other platforms like Instagram cannot be sued for taking on this idea and making their own distinct filters. On the other hand, since Snapchat filters may not fall within the defined artistic works, their exact designs could be protected under patents and not copyrights.
It is pertinent to point out that if there is an increase in copyright protection for everything that seems “artistic enough”, it will not only hinder others from innovating further but also cause undeniable issues pertaining to ownership, enforcement and fair use. It may also open massive floodgates of litigation for all kinds of works seeking protection and, as a result, add to the uncertainty regarding copyright laws. Another important element to consider is that intellectual property seeks to provide a monopoly over innovations, which are economically valuable as seen in the case of Carell v. Shubert[28] and promote innovation. Snapchat filters are being used for personal viewing only and do not cause any economic benefit. Furthermore, these filters have now become part of the public domain, considering other platforms like Instagram have also started producing such features, with several photographs featuring these filters. Therefore, it would also give way to high tracing costs in determining the extent of copyright protection and the ownership of the filters in the content that effectively belongs to the users.
Suffice to say, the massive growth in innovation of technology and social media cannot be ignored, but at the same time such growth poses new challenges for laws concerning intellectual property. As it has been shown, Snapchat filters are unlikely to constitute artistic works without being affixed to the faces of its users. The nature of Snapchat filters is such that it is too remote to fit into any of the listed copyrightable subject matter and the problem extends further with the inability to meet the fixation element. Despite the US having an open-list system and a utilitarian approach, it also remains restricted to the meticulous requirement of fixation. Perhaps the main concern is that the designs, individually, are not protected under copyrights like fashion cuts, and if the designs of Snapchat filters were deemed copyrightable, they would cause sheer confusion and unnecessary overlap with patent law. It can also be said that the law does not effectively cater to the novel attributes of Snapchat features. Perhaps making the law more comprehensive shall provide an appropriate understanding of whether new forms of work can be protected. However, this entails a struggle and detailed precedents, especially if a country like Pakistan follows a closed-list system.
References
[1] Molly McHugh, “Swiped” (The Ringer, 16 June 2016) <https://www.theringer.com/2016/6/16/16037248/snapchat-stealing-filters-ae39a061c274> accessed March 23, 2020
[2] Merchandising Corp of America v Harpbond Ltd [1983] FSR 32
[3] Tony Wagner, “Instagram Made a Snapchat Knockoff. Can They Even Do That?” (Marketplace, 29 April 2019) <https://www.marketplace.org/2017/05/26/instagram-snapchat-knockoff-can-they-even-do/> accessed March 23, 2020
[4] Copyright Ordinance, 1962, Section 10(a)
[5] Ibid, Section 2(c)(i)
[6] Merchandising Corp of America Inc v Harpbond Ltd [1983] FSR 32
[7] (Snapchat Support) <https://support.snapchat.com/en-US> accessed March 25, 2020
[8] Copyright Ordinance 1962, Section 26(c)
[9] 17 U.S. Code, Section 101 (2012)
[10] Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2d Cir. 2008) & MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 517-18 (9th Cir. 1993)
[11] Cartoon Network LP, 536 F.3d at 127 (quoting 17 U.S.C. Section 101 (2012))
[12] MAI Sys. Corp., 991 F.2d at 517-18 (quoting 17 U.S.C. Section 101 (2012))
[13] Nathan C Ranns, ‘Gone in a Snap: The Effect of 17 U.S.C. Sec. 102(A) Fixation Precedents on Ephemeral Messaging Platforms’ (2017) 45 AIPLA Q J 255
[14] Williams Elecs., Inc. v. Artic Int’l, Inc., 685 F.2d 870 (3d Cir. 1982) at 877
[15] Ibid
[16] Ibid, at 874
[17] Carell v. Shubert Organization 104 F.Supp.2d 236 (S.D.N.Y. 2000)
[18] Lucasfilm Ltd & Ors v Ainsworth & Anor [2011] UKSC 39
[19] Arrielle Sophia Millstein, ‘Slaves to Copyright: Branding Human Flesh as a Tangible Medium of Expression’ (2014) 4 Pace Intell Prop Sports & Ent LF 135, 153-154
[20] Ibid, pg. 154
[21] Varsity Brands, Inc v. Star Athletica, LLC, LLC 799 F.3d 468 (2015)
[22] Ibid.
[23] Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)
[24] Ibid.
[25] Infopaq International v. Danske Dagblades Forening [2009] ECDR 16 (Case C-5/08) & Football Dataco Ltd and others v. Yahoo! UK Ltd and others, 1 March 2012 (Case C-604/10) in Andreas Rahmatian, “Originality in UK Copyright Law: The Old ‘Skill and Labour’ Doctrine Under Pressure” (IIC – International Review of Intellectual Property and Competition Law, 1 January 1991) <https://link.springer.com/article/10.1007/s40319-012-0003-4> accessed March 24, 2020
[26] Infopaq International v. Danske Dagblades Forening [2009] ECDR 16 (Case C-5/08)
[27] Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)
[28] Carell v. Shubert Organization 104 F.Supp.2d 236 (S.D.N.Y. 2000)
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