INTRODUCTION
The profession of cosmetic artistry in India has witnessed a precipitous ascent, propelled in no small part by the glamour of Bollywood, the grandeur of traditional weddings, and the increasing prominence of fashion events. Furthermore, the meteoric rise of social media influencers has further amplified the demand for such services. However, notwithstanding its burgeoning prominence, this industry remains characterised by a pervasive informality. A substantial proportion of makeup artists operate without the benefit of formal employment contracts, engendering many legal ambiguities concerning employment classification and the enforceability of restrictive covenants, such as non-compete agreements.
The proper classification of employment relationships is of paramount importance, as it serves as the sine qua non for the determination of an individual’s entitlement to a panoply of rights, including, inter alia, intellectual property rights over artistic creations, social security benefits, and the enforceability of restrictive clauses. Regrettably, the legal framework governing such classification in India remains nebulous and ill-defined, resulting in the exploitation of makeup artists, who frequently find themselves in a precarious and vulnerable position. While contract-based arrangements and freelance work are prevalent within the Indian context, the legal protections afforded to those engaged in such endeavours are woefully inadequate.
Moreover, the conundrum of employment classification is not confined to India’s geographical boundaries but extends to the global arena. Instances abound wherein the intellectual property rights of makeup artists have been flagrantly infringed upon. A case in point is the 2017 litigation involving makeup artist Valida Haggerty and Kylie Cosmetics, in which the latter was accused of unauthorised appropriation of the former’s creative work. This case serves as a stark reminder of the challenges freelance makeup artists face in safeguarding their intellectual property and securing equitable treatment within the industry.
CLASSIFICATION OF EMPLOYMENT
In labour law, essential factors, including rights, tax applications, and benefits, affect the distinction between independent contractors and employees. Independent contractors generally operate outnumber sleep and offer services under specific agreements. However, employees under employer supervision typically enjoy statutory benefits like Social Security, provident funds, and minimum wages. There is a lack of comprehensive legal recognition under traditional labour laws when talking about gig workers, including make-up artists in India. There are generally verbal or informal contracts or agreements when most make-up artists function as freelancers.
They often didn’t get the benefits typically reserved for employees because ambiguity prevented them from having such access. These include the Provident Fund or minimum wages under laws like the Minimum Wages Act of 1948 or the Code on Social Security, 2020.
Globally, some tests, such as the USA framework, with an ABC test to determine employment status independence, focusing on controlling them and the nature of work. These types of tests can also be seen in the EU and UK. These provide a precise classification for them standard-wise. However, there is uncertainty for make-up artists in India when we see the fragmented labour regulations. This complicates independent contractors’ tax treatment as they must register for GST while employees face TDS on salaries.
These disparities can be sold or resolved by legal clarity if we qualify the rights of freelance professionals under labelled, which can enhance this bridge. Fair treatment and equitable protection are needed for makeup artists.
RESTRICTIVE AGREEMENTS LIKE NON-COMPETE CLAUSES
As we can see, non-competition causes are restrictive examinations that Restrict the makeup artist from engaging with similar professions or working with competitors.
Noncompete clauses are very much in running bridal makeup contracts, film production, beauty, salons, or houses in India. These clauses generally prevent makeup artists from establishing their brand as they face restrictions that stop their ability to collaborate with other clients or companies.
Legal validity
- In the Indian Contract Act 1872, section 27 of India’s law invalidates the non-compete clauses. This section says any agreement restraining individuals from exercising a lawful business trade professional is void, except for protecting specific interests such as confidential information, trade, or secrets. In some cases, the Court of India has upheld these clauses in particular circumstances when there is considerable reasonable Protection of business interest. For example, in the case of D.R. Cosmetics Pvt. Ltd. and Anr. v. J.R. Industries. This case involved trademark disputes related to cosmetic products. The Supreme Court emphasised the importance of protecting business interests and intellectual property rights in the cosmetics sector, which is relevant to freelance makeup artists who may face issues regarding branding and representation.
GLOBAL LAW COMPARISON
On the global level, the enforceability of noncompete clauses is directly Proportional to jurisdiction. When we take the United States, these clauses are enforceable and reasonable in duration and scope.
We can take the case of Niranjan Shankar Golikari v The Century Spinning & Manufacturing Co Ltd as an example.
KYLIE COSMETICS MUA DISPUTE IN 2019
The aforementioned litigation, centring upon the 2019 Kylie Cosmetics MUA Dispute, is a salient illustration of the contentious interplay between cosmetic artists and their employing entities. In this instance, the gravamen of the dispute arose from allegations of misclassification, wherein freelance makeup artists asserted their erroneous designation as independent contractors, thereby precluding their entitlement to benefits such as health insurance and remuneration for overtime labour. This case garnered significant public attention, spotlighting the multifaceted challenges confronting freelance makeup artists in their pursuit of equitable compensation and benefits within a dynamic and ever-evolving economy.
Furthermore, this legal action has established a critical precedent for the advancement and protection of artists’ rights on a global scale, transcending the confines of the immediate dispute. The resultant judicial determination underscored the imperative of accurate worker classification to ensure conformity with prevailing labour laws and the equitable treatment of all individuals engaged in artistic endeavours by addressing the pervasive issue of worker misclassification within the creative industries.
BOLLYWOOD MAKEUP ARTIST DISPUTE
Multiple challenges have been raised regarding the payment and unfair contracts of freelance makeup artists in Bollywood, India. A frequent issue is the exploitation of freelance makeup artists, who often do not receive fair compensation for their work and remain unpaid due to the informal nature of the contract in this makeup industry.
1.Charu Khurana & Others v. Union of India & Others
This landmark judgment by the Supreme Court struck down a provision restricting women from working as makeup artists in the film industry. It highlighted discrimination issues and the right to livelihood under Articles 14 and 21 of the Constitution of India. The ruling emphasised that women should not be barred from entering professions for which they are qualified, thus setting a precedent against gender discrimination in professional spaces.
- Cine Costume Make Up Artist and Anr v. Sharad Shelar President
This case involved challenges against the Cine Costume Make-up Artists and Hair Dressers Association (CCMAA) practices, focusing on regulations that could potentially exploit freelance artists. The court’s examination of these practices is crucial in understanding how such associations may perpetuate unfair treatment and exploitation of freelance makeup artists.
INDIAN MAKE-UP INDUSTRY
Legal literacy is very important for makeup artists in India. If they want to protect their rights, they must be aware of the rights regarding the employment classification. There are various kinds of enforcement of the non-compete clauses and wage agreements. There should be written agreements, clarity on wage classification, employee versus contract, and terms related to restrictive covenants on the negotiating contracts for best practices. Freelance makeup artists should be more cautious of informal or fake contracts that may leave them vulnerable to exploitation.
Employers in India
Under Indian law, as per section 27 of the Indian Contract Act 1872, employees must understand the limitations of non-compete clauses. Such clauses are generally not adequately Enforced unless they are reasonable and protect legitimate business criteria. To avoid disputes, the employer has to practice worker classification and compliance with the labour codes. Clear terms regarding compensation, working conditions, and intellectual property are essential for fostering healthy employer-employee relationships.
Government’s role in this situation
The Indian government should broaden the labour laws to include gig and freelance workers like make-up artists to ensure the fair treatment of make-up artists.
Some amendments are needed in the Code of Wages, 2019, and the Code on Social Security, 2020, to protect artists working outside formal employment structures.
Regulation and formalisation of the sector are necessary for better accountability, fair wages, and a safe working environment.
CONCLUSION
In summation, the aforementioned challenges regarding employment classification and restrictive covenants, particularly within cosmetic artistry, necessitate a comprehensive re-evaluation of existing legal frameworks in India and globally. High-profile litigation has illuminated the precarious position of freelance artists, underscoring the urgent need for more explicit labour regulations in the creative sector.
Specifically, within the Indian context, freelance makeup artists, inter alia those engaged in the Bollywood and salon industries, encounter formidable obstacles, including, but not limited to, exploitative employment contracts, unduly restrictive non-compete clauses, and the lamentable prevalence of non-payment for services rendered. These issues are further exacerbated by the dearth of formal labour protections afforded to individuals engaged in the gig economy and freelance work.
Notwithstanding the prima facie unenforceability of non-compete clauses under Section 27 of the Indian Contract Act of 1872Significant hurdles persist in ensuring equitable practices within the Indian beauty industry. Thus, legislative bodies are incumbent upon reforming existing labour laws, with specific attention to the inclusion of gig workers under the ambit of the Code on Wages, 2019, and the Code on Social Security, 2020. Such reform is paramount to guarantee fair remuneration, unfettered freedom to pursue one’s chosen profession, and the provision of essential social security benefits.
To achieve an equitable and sustainable solution, a delicate balance must be struck between safeguarding legitimate business interests and promoting makeup artists’ artistic autonomy and economic security. Heightened awareness and robust legal reforms are indispensable to address this pressing concern effectively.
Author(s) Name: Divyanshi (Magadh University, Bihar)
