Fighting for a Smile: Legal Battles Over Social Media Filters and Beauty Standards

Social media’s influence over the past few years has grown astronomically, driven by innovations such as stories, custom avatars, and thousands of filters. At first, these filters were playful, letting users add dog ears or vomit rainbows. However, these filters slowly started to be used to edit and reconstruct something set in stone: facial structures. Now, filters add complete makeup looks, reshape and slim faces, and can even create a ‘teenage look’. Face-editing apps like Lightricks, which has amassed over 200 million downloads, have further fuelled this trend of reshaping reality. 

Wellbeing Concerns 
With filters, anyone can create the ‘perfect’ face by simply smoothing away their ‘flaws’. However, the contrast between these filtered images and reality has contributed to an increase in reported cases of body dysmorphia. According to a study by the British YMCA, two-thirds of young people feel pressured by these beauty standards on social media, so much so that a quarter of girls between 11 and 21 would not post an unedited photo. Although many apps, like Snapchat, have age restrictions (typically 13+), these limits are often unenforced. According to a 2022 survey, 68% of preteens were using social media applications, with 31% using Snapchat. This issue of body dysmorphia does not stop with children. Even for adults, social media influences self-perception. According to a survey of plastic surgeons, 62% reported that patients sought cosmetic procedures due to dissatisfaction with their social media profiles.

Filters Promoting Dangerous Behaviour 
Filters are not only mentally impactful but can also pose physical dangers. This was demonstrated in the 2015 US case Maynard v. McGee, where a distracted driver, Christal McGee, crashed her car into another vehicle. At the time of the accident, McGee was using Snapchat’s in-app filter, which displayed her current speed. Whilst attempting to go 100mph, she reached approximately 107mph when she hit the car of Wentworth Maynard, causing him permanent brain damage. Although the State Court of Spalding County, Georgia, initially dismissed any case against Snapchat, the Georgia Supreme Court reopened proceedings in 2022, stating that app manufacturers should take ‘reasonable care to reduce reasonably foreseeable risks’. As a result, Snapchat CEO Evan Spiegel is now required to provide a deposition in the lawsuit filed by Maynard. This will help establish whether Snapchat owed a duty of care under tort law to Maynard and hence can be held liable for the injury caused.

Legislative Measures
Through a legal lens, there have been efforts to remove these detrimental aspects of social media. In 2023, this manifested itself when dozens of US States sued Meta, alleging that the company knowingly harms users, particularly young girls, by using tools that ‘promote body dysmorphia’ and enforcing lax guidelines around user protection. Other countries have also introduced legislation targeting filters: in Norway and Ireland, advertisements that use filters must be clearly labelled. France has proposed a similar law, which could impose fines of up to €300,000 or six months in prison on influencers who violate it. Less formal efforts have been seen in Germany, where in 2022, YouTuber Carlsson started a petition calling for increased federal regulation on filter use and its impact.

IP Issues Around Makeup Filters
A copyright ‘protects your work and stops others from using it without your permission’.  In the UK, there is no formal process to register a copyright. Instead, if you create an original work, be it literary, dramatic, musical or artistic, you gain an automatic copyright. Artistic works have hitherto been seen as copyrightable where they are in a fixed or permanent form. Copyrighting a specific makeup look, as opposed to a traditional work of art, is a challenging process. Historically, this issue has arisen with makeup due to its lack of permanence as it is designed to be wiped off. Therefore, makeup is not seen as a work of a ‘permanent medium’. There have been efforts to classify makeup as a different form of art, for example, as a ‘painting’, to make it easier to protect by copyright. 

One case which helped to clarify that some stage makeup can be copyrighted is Carell v. Shubert Organization Inc. Here, the stage makeup used in the Broadway musical ‘Cats’ was protected under copyright law by a US District Court. Makeup artist Candace Carell filed for copyright in 1990 for her feline makeup designs. In 1993, costume designer John Napier and the show’s producers requested her copyright be cancelled, arguing that the designs were his. The copyright office refused Napier’s application after Carell ‘rejected co-ownership of their designs’. Carell successfully retained her copyright because her makeup designs remained consistent throughout every performance, despite the actors changing. This case helped to establish the stage makeup copyright, allowing other artists to protect their creations. 

Even though Carell held that makeup is protectable under copyright law, the landscape of makeup art and copyright law is still relatively undeveloped. This is because most makeup looks are not identically replicated, thus they are not able to satisfy the criteria of permanence. The law requires clarity on allocating copyright when no long-term record of a specific look can be evidenced. When makeup looks are replicated digitally via filters, thereby creating a degree of permanence, the law needs to clarify whether that look is worthy of a copyright. 

IP Issues Around Filters
The issue of copyrights around filters gained prominence in 2015 when the social media Snapchat first started to use ‘filters’. Within a year, Snapchat created filters which were almost identical to artist Mykie's rainbow teary-eyed makeup look. Snapchat denied that it had infringed any copyrights. This was not an isolated incident. Snapchat has continued to replicate others' work. For example, in 2016, Snapchat released some new filters that allegedly resembled the work of makeup artist Alexander Khokhlov. After mass backlash, Snapchat apologised, stating that the ‘lens is similar to other artists’ creations and we have removed it.’

For makeup artists, pursuing legal action can be difficult, as it is hard to quantify what a ‘sufficient[ly] original’ makeup look is. Further, this issue is complicated because many makeup artists who post their makeup online - such as James Charles - welcome their replication. This makes it even harder to decide which makeup looks are copyrightable. 

Even when makeup artists create highly original looks, the artists still encounter issues with these larger companies. This is because large social media corporations have much more power and money than smaller artists. Using the example of Snapchat, their yearly revenue in 2023 was $4.606B, and they have their own legal representative - Snap B.V. - ready to settle copyright disputes. Copyright guidelines need to be established to ensure that these smaller creators are able to express themselves freely through the medium of makeup without fear of having their work appropriated and without recompense by the giant social media companies.

By Amelia Pettit