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Two weeks ago, a prominent Russian mathematician and blogger, Mikhail Verbitsky, was barred from traveling outside of Russia to a mathematics conference in Warsaw. Boarder guards took Verbitsky into custody for failing to pay $1,350 he owed in damages. Unbeknownst to Verbitsky, a Russian man named I.V. Pugach secured a judgment against him for violating his trademark to a particular style of beard–the goatee–after Verbitsky had criticized Pugach on his blog. Pugach claims that those who want to sport the facial hairstyle without first purchasing a license from him violate the law. The license costs individuals $600; however, Pugach’s fee increases to upwards of $4 million for celebrities and television stations. Furthermore, according to Masha Gessen, a journalist in Moscow and blogger for the New York Times, Pugach asserts that the goatee is a “racial attribute” of the Russian people; thus when people who are not of Russian nationality wear a goatee, they not only owe him a fee, but also commit “genocide” against the Russian people. While this may seem outlandish, the Russian courts do not think so, for they allowed Pugach to secure a judgment against Verbitsky. Hence, the question remains: could this happen in the United States?
Under section 102 of the 1976 Copyright Act, copyright protection is only available for articles that are fixed, meaning sufficiently permanent or stable. Items that are dynamic or in a constant state of change cannot be copyrighted. For example, in Kelley v. Chicago Park District, the U.S. Court of Appeals for the 7th Circuit stated that a garden could not be copyrighted because flowers grow and bloom; they are perpetually changing. Similarly, in Kim Seng Co v. J&A Importers, a district court in California stated that a bowl of Vietnamese food was not copyrightable because food spoils. Like a garden or a bowl of Vietnamese food, a goatee is not stable, for it consists of hair, each strand of which is in its own unique stage of growth. Thus, as hair fails the fixation requirement, a goatee is probably not copyrightable in the U.S.
Furthermore, even if a beard were fixed, it would likely not be copyrightable because copyright does not extend to useful items. For example, planes and cars are generally not copyrightable because their expressive elements are inseparable from their utility. Hence, a beard would be copyrightable only to the extent that its aesthetic aspects were separable from its functional aspects. This would be challenging and impractical; thus, the a beard is likely not subject to copyright protection in the U.S.
A trademark is a word, phrase, symbol or design that “distinguishes the source of one product from another.” A person living in the U.S. cannot own a trademark to a particular stye of facial hair, such as the goatee, for three reasons: (1) it is not used for commerce; (2) it is generic and has not acquired a unique meaning; and (3) it is functional. First, a trademark indicates that the owner of the mark has the exclusive right to use the item in commerce. However, beards have no commercial use. Goatees are worn, not traded or sold. Second, trademark protection does not extend to items that are generic such that they lack unique meaning. The point of a trademark is to distinguish one item from another. Although one man’s beard may be styled differently than the next, is this truly a unique distinction? Unlikely. A goatee is simply a generic term for a type of facial hairstyle. Finally, as with copyright, useful items do not receive trademark protection. Thus, in the U.S., people likely cannot own the trademark to a goatee.
Finally, a goatee can likely not be patented because it fails two main requirements: (1) novelty and (2) obviousness. A goatee is not novel because it has been a facial hairstyle available to the public for centuries. However, even assuming that a particular type of beard is so unique as to fulfill the novelty requirement, it still fails for obviousness. A goatee is an obvious type of hairdo to somebody skilled in the art of hair styling. Thus it is prior art and likely cannot be patented. In sum, protections for intellectual property, including copyright, trademark and patents, probably do not extend to goatees.
Lawsuits related to hair have occurred in the past. For example, in 2006, the ACLU brought a suit against a club in Virginia Beach that barred admission to a young woman because she wore her hair in dreadlocks. Additionally, this past March, the manufacturer of a hair product, the Brazilian Blowout, settled a class action lawsuit in which he was accused of falsely marketing his product as formaldehyde free. Although many claims centered around hair are legitimate and Mikhael Verbitsky must take his conviction seriously, it is unlikely that a court in the U.S. would uphold the claim that one man owns the exclusive right to wear a goatee.
– Frances Kammeraad
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