Swiped

Editor’s note: After publication, a Snapchat spokesperson reached out with a response to this story. Click here to read the company’s statement.

On Monday morning, Argenis Pinal did what many of us do: He grabbed his phone, swiped to Snapchat, opened the app, and started flipping through the filters. Puppy, princess, face morph, and … oh. The Joker. His Joker. “I was like, ‘Really?! What is this?!’”

Pinal is a makeup artist with 11 years’ experience. He’s gotten stars ready for red carpets and made them beautiful for music video shoots. In 2014, he started face and body painting, and quickly become known for this work, amassing thousands of followers via Instagram and expanding his brand to Snapchat. Needless to say, he was shocked to find what seemed to be his work living inside the app, without his permission. “I came across it and I was like, ‘Um, this is exactly the same drawing I did of myself a couple months ago,” says Pinal. “And it was weird, because I literally just reposted a picture of it a week ago on Instagram. Sort of a re-shout-out to it.”

Before reaching out to Snapchat, Pinal posted on Instagram a side-by-side of his creation next to the app’s filter. He was passed a contact for the social media company, but by 10 o’clock that night the filter had disappeared. It’s unclear whether it was pulled because it was meant to be temporary or because of the social outcry that Pinal’s posted evidence had caused.

The incident with Pinal’s Joker art isn’t the first time Snapchat has been accused of taking liberties with an artist’s work. In May, Snapchat’s reappropriation of Russian artist Alexander Khokhlov’s work made the rounds. (You might remember the filter, a colorful geometric overlay.) Khokhlov said Snapchat did not request use of his design. Snapchat’s response at the time: “We agree that this lens is similar to other artists’ creations and we have removed it. We are sorry for this embarrassing mistake and we are taking action to make sure it won’t happen again.” One month later, a filter controversy has resurfaced.

In 2015, Snapchat introduced the Lenses feature, which became known as “filters.” To use it, just choose the self-facing camera, tap and hold the screen over your face, and swipe through a variety of transformative overlays: You can puke rainbows, turn yourself into a puppy, and transform into a mustachioed policeman. The filters are swapped out often, with new options appearing every day. They’re wildly popular, and Snapchat is investing in them: The company recently acquired Seene, which makes 3-D selfies. A not-small contingent of the internet uses Snapchat as their selfie cam. It’s a phenomenon.

It’s also becoming a headache for some artists, including Mykie, a well-known makeup artist with millions of combined followers on YouTube, Twitter, and Instagram (she’s also known as Glam&Gore). Mykie is a living example of what the internet can do for an artist; her accounts have attracted legions of fans, as well as business opportunities and even industry plaudits — in 2015, she was named NYX Cosmetics’ Beauty Vlogger of the Year. “Social media completely changed my career. It took me from working makeup jobs on set that didn’t even pay minimum wage for 12+ hours a day, and waitressing part time, to having more work than I can handle most weeks,” says Mykie. “I really don’t want to come across as bitter or ungrateful.”

“Instagram [has given me] a lot of opportunities, so keeping it up and growing is very important for me and everyone else exposing their art on social media,” says Pinal. “I do rely on Instagram for jobs, and many artists do the same.” Social media has reinvented the industry for makeup artists, making them microcelebrities unto themselves — now, their work is something to religiously follow. Fans often try to re-create artists’ looks using tutorials in their own homes, but as Mykie learned, they aren’t the only ones paying attention.

In April, a friend texted Mykie a screenshot of a Snapchat filter that looked very much like something she had created more than a year ago.

Since discovering the Snapchat filter that resembled her work, Mykie has become an advocate for other artists in a similar position. But she’s still attempting to work with Snapchat. “Most recently their support team has not responded to my tweets [as well as tweets from others] wanting answers on this recurring issue,” she told me via email. “I also filed a report through the app with my particular case when the filter first appeared and their response was that they ‘Don’t believe that the filter infringes any copyright.’ That would ultimately be up to a judge to decide if the work had been altered enough to count as a new work.” As in Pinal’s case, the filter disappeared soon after Mykie posted evidence of the app’s copycat work to her Instagram feed.

Graphic artists have long seen their work lifted and reused in various ways — a Target T-shirt here, an Urban Outfitters print there. Artist Lois van Baarle says that Snapchat repurposed her work as a sticker, which she noticed “purely by coincidence” while installing the app for the first time.

“In total, three of my sketches were traced and used in the app. My fox sketches have been circulating on the web since I created them in 2013,” says the artist. “I’m guessing they found it through a web search.”

Van Baarle believes the images were traced by a Snapchat employee. “My original sketches are quite stylized — I remember really challenging myself to explore interesting shapes and proportions, so it seems very unlikely that an artist working with Snapchat coincidentally happened to create the exact same level of stylization in their graphics.”

Van Baarle has tried contacting Snapchat via social media, to no avail.

For Mykie and Pinal, things are more complicated — there are legal parameters that protect graphic art and words, but protecting face and body art is trickier. “As I understand, it is difficult for makeup artists to protect their work since the copyright office does not automatically list makeup as one of their mediums eligible for copyright, unlike other types of art,” says Mykie. Though, she points out, successfully copyrighting makeup is not without precedent.

In the case of Carell v. Shubert Organization Inc., the makeup created for the Broadway musical Cats was deemed protected by copyright law in a U.S. District Court decision. In 1999, Candace Carell, the makeup artist responsible for the looks in the show, sued Cats producers over copyright infringement. After Carell’s designs generated profits from ancillary products, like coloring books and face-painting kits, she fought and won the right to protect her laborious creation. And this isn’t a new development. As far back as 1978, the band Kiss trademarked its signature face paint.

Of course just because you can take action doesn’t mean you can. “If only I could afford the time and money it would require to pursue this process against a large company’s legal team!” says Mykie. “I believe many makeup artists do not have a lot of recourse in these situations because of that factor, more than anything else.”

Taking Snapchat to court would be even more complicated — how do you quantify the value of a filter? “It’s a huge exercise to try and say how much something like that is worth,” says patent lawyer Steve Schlackman. “How do you calculate how much money is being made on a free service — you have to take into account how long the filter was actually up, and … see how many people actually even used it. What if not that many people used it?” All the while, you’re paying legal fees. “Snapchat knows you’re not going to sue them. The numbers don’t work,” says Schlackman.

Schlackman has some advice: If you’re a makeup artist looking for exposure, Snapchat might not be the place to get it. “Anything you upload there, you’re giving Snapchat rights to.” This rash of “borrowing” might mean it’s time for artists to start copyrighting their work, which Schlackman says could cost $35 per design. (Photographers, by contrast, can copyright bundles of hundreds of photos for $55 — so choose wisely.) Copyrighted material is retroactive up to three months after it was created, so there’s a window. This means that if you see something you designed show up as a Snapchat filter, you can still copyright it so long as you made it within the last three months. … But that’s a costly and timely process, and Schlackman suggests copyrighting your best work “or the stuff you see going viral.”

I reached out to Snapchat to ask about these incidents, as well as how its filters are chosen and designed. The company did not respond to my inquiry. But Schlackman says that if you ask for something reasonable — your payment for a design, or perhaps credit somehow — the company might provide it in order to avoid a PR headache.

There is one intellectual wrinkle here: Makeup artists actually want people to copy them — just not like this. “I put tutorials online in the hopes that people will recreate them and learn in the process,” says Mykie. She wants followers to watch her videos and do what she does; that’s the whole point. But she says there have been times when it seems like New York Fashion Week looks or makeup photos — or these all-too-familiar Snapchat filters — borrow from her without credit, and that these instances “feel like a punch in the gut. … [It] sends a message that makeup artists are not respected.”

For Pinal, Mykie, and other artists, it forces them to make a difficult decision: Snapchat is a dynamic platform for sharing their work and pushing their brands. Mykie is still using it (though she’s considering leaving).

“I’m so grateful to my fans and everyone who follows me and all the opportunities it’s given me,” says Pinal. “So it’s sad. I mean, [for a company as] big as Snapchat to steal your picture and not credit you at all…that’s hours of work.”

So why the seeming deception? Van Baarle thinks it might be the pressure and speed of the industry. “Artists are often asked to emulate a certain style or work under very short deadlines, so they resort to things like this,” van Baarle says. “I don’t know for sure whether that’s the problem in this specific case, but it seems likely to me.”

Perhaps what’s most maddening is that this feature could be used for good; Snapchat has the ability to connect with the artist community, ask for filter submissions, and credit those responsible. Snapchat has worked with brands on integrations like the hugely successful Taco Bell filter. Why can’t this treatment be used for individual artists already using the platform? Pinal says if Snapchat had a program in which it incorporated artists at the creative level — and provided credit — he would absolutely participate. Mykie says if she’d been asked for permission and either credit or compensation had been discussed, she would also agree.

Instead, these filters come and go, without much attention from the general public paid to whether or not it’s violating someone’s work. But now, multiple people have likely had their art used without consent by Snapchat.

In most cases, they’ve yet to even receive a response, which, as van Baarle puts it, is the most troubling part. “They’re ignoring the issue, which I think is the biggest problem of all.”

It’s all the more difficult for the artists who are asking for so little in return. “I love Snapchat, but it’s like … come on,” says Pinal. “Can you at least credit people?”