Splitting Hairs: Work For Hire Language in Stylist Contracts

For companies that regularly engage stylists for campaigns, photo shoots, runway shows, and other high-profile events, understanding how to navigate these requests is essential. Without proper contract review and negotiation, companies risk inadvertently agreeing to terms that could limit their creative flexibility, impose unexpected licensing obligations, or create disputes over the use of certain looks in future projects. This alert provides an overview of the issue and practical guidance for addressing stylist intellectual property demands. 

The Issue 

Stylists engaged for fashion events, photo shoots, and editorial campaigns are increasingly seeking contractual provisions that characterize their hair and makeup work as proprietary intellectual property. In some cases, stylists are requesting work-for-hire language that would vest them with ownership rights over the looks they create, or language implying that a company may not replicate or reuse similar hairstyles or makeup in future campaigns without the stylist’s consent. 

If the Stylist Insists on Work-for-Hire Language 

If a stylist insists on including work-for-hire or intellectual property ownership language as a condition of engagement, it is critical to negotiate narrow carve-outs that protect your interests. Specifically: 

1. Define “ownership” narrowly. Limit any intellectual property claim to truly novel, distinctive looks that would qualify as registerable trade dress under the Lanham Act. Note that hair and makeup styling does not fit within the nine enumerated work-for-hire categories under Section 101 of the Copyright Act. 

2. Exclude general styles and techniques. Ensure the stylist has no ownership interest in standard techniques (such as ponytails, updos, braids, smokey eyeshadow looks, or makeup contouring) these are tools of the trade, not proprietary creations. 

3. Preserve freedom to operate. Confirm the company retains full discretion to use similar looks on future campaigns without restriction or additional compensation. 

Key Takeaway 

The current state of US intellectual property law provides very limited protection for hairstyles and makeup applied to a person. While the legal landscape could evolve, particularly as courts grapple with new questions about aesthetic intellectual property in the influencer and social media context, the prevailing view remains that standard beauty and styling work does not rise to the level of protectable intellectual property. Companies will want to approach stylist agreements with this understanding and resist language that could create unnecessary exposure. 

Please do not hesitate to reach out to the Fashion & Retail team or your ArentFox Schiff attorney contact with any questions about a specific agreement or negotiating stylist contracts for an upcoming event.