Recognizing Nail Art as Art

What comes to mind when you think of manicures?  Is it a $20 mani-pedi from a strip mall salon, or is it a set of Instagram-worthy nail art that costs at least $120?  For many, manicures invoke a vision of strip mall salons, decorated with nail polish bottles on the walls and filled with smells of acrylic nail supplies and acetone.  But now, there is a new wave of nail salons—owned by only one or two, not nail technicians, nail artists.  These nail artists focus on anything from minimalistic designs to intricate portraits on fingertips, commonly on acrylic or new gel technology and with techniques hailing from Japan, Korea, and Russia.  Yet, nail artists and new wave salons often do not get the recognition they deserve because of the social stigma behind traditional nail salon stereotypes and fear-mongering news about the nail industry. 

Traditional nail salons are often unfairly subjected to anti-Asian tropes and a hallmark of a lower-class business.  Viral jokes were made about Vietnamese nail technicians years ago, showcasing broken English and suggesting that technicians talk about clients with other technicians in their native tongues.[1]  There is a fear that clients can pick up infections at a salon, even though doctors have said infections “cannot always be easily traces to a salon because the symptoms usually do not appear until later.”[2]  People also love to share their nail salon horror stories as entertainment and a warning to others because these experiences are, unfortunately, quite common.[3]  Many continue to believe that nail workers are lower-class minorities that are rude, and nail salons are unsanitary.[4] 

The stigma worsened during the pandemic.  In May 2020, Governor Newsom stated in a news briefing that the spread of COVID-19 started in a California nail salon.[5]  When asked to provide more information and facts to support that claim, Newsom responded that he could not release it.[6]  Approximately 80% of California nail salons are owned by Vietnamese Americans.[7]  Nationally, 79% of nail salon employees are foreign-born.[8]  Hate crimes against Asian American, Native Hawaiians, and Pacific Islanders surged during the pandemic,[9] and many worried that the governor’s statement contributed to more anxiety and fear within these communities.[10]  With this statement released a year after the Atlanta spa shootings,[11] it can seem like salons and salon workers are forgotten by law. 

Misinformation about nail products also contribute to the stigma.  During the pandemic, the New York Times released an article attempting to create a distinction between nail products and nail wellness.[12]  Jessica Defino wrote: “[a]n interest in health is perhaps an obvious outcome of the pandemic, but it’s still a novel interest in the nail care space.  The typical manicure, even one that uses so-called clean and free-from formulas, harms the health of nails and the health of the whole.”[13]  Defino failed to realize that the nail industry has exploded with new products and techniques, with Japanese gel at a forefront of the evolution.  These new gels—no longer exclusive to only Japanese products—differ from the gel polish previously offered: “Japanese gel nail products use cosmetic grade pigments, not like many gel polishes. . . .[They] go through strict inspections and oversight.”[14]  These gels have strict quality control as they are not mass produced like traditional nail products.[15]  They are healthier and have been available to purchase globally for over a decade.[16]  Nail care and wellness is not as novel as Defino believed.

Adding to the misconceptions, in January 2023, a study on UV nail lamps revealed that frequent exposure to UV lamps could increase the risk of skin cancer.[17]  This sent the Internet into a frenzy,[18] with many people believing only the headlines and bashing gel manicures, furthering the stigma clouding nail salons.[19]  Since then, more doctors have weighed in on the study.[20]  Doctors commented that “[a]lthough the cell damage is worrying, . . . the study does not prove that UV lamps can cause cancer.”[21]  Some people, who regularly get gel manicures, reported that they were diagnosed with skin cancer; however, they cannot say for certain if their nail treatments caused it.[22]  Fear-mongering articles cloud the nail industry, preventing many from recognizing the art of nails.

Thanks to the rise of social media, the nail art industry finally gets their chance to shine.  Many nail artists gain popularity online because they showcase how much labor and love they put into these art works on tiny “canvases.”[23]  Some artists are recognized for their work on celebrities, especially for special events like the Oscars[24] or the Super Bowl.[25]

Still, art protection in the broader beauty industry is often overlooked, especially on social media, where users can easily repost images, and creator names are just as easily lost.  For instance, in 2015, makeup artist Vlada Haggerty’s original lip art was reproduced on Kylie Cosmetics’ “Lip Kit” packaging.[26]  The packaging was shared on Kylie Cosmetics’ Instagram page without credit to Haggerty—until users commented and asked the brand to recognize the artist.[27]  The next day, the image was edited to include inspiration credit to Haggerty, but the artist never got a direct response to her complaints and concerns over her art’s unlicensed use.[28]  As Haggerty stated, “[c]rediting artists is essential, but this goes beyond that.  It’s theft; this is our livelihood.” [29]  In 2016, it happened again: Kylie Jenner’s brand reproduced another one of Haggerty’s works for its holiday campaign.[30]  This time, Haggerty, sued for copyright infringement.[31]  However, the matter was quickly resolved, as all parties reportedly reached a settlement a month later.[32]

But for nail artists, hopes of filing a suit to prevent an original design from being commercially misappropriated does not come as easily.  Perhaps because of the social stigma around the nail industry, the demographics of nail artists, or the temporary nature of traditional forms of nail art, art painted upon nails gets filed away in the back of everyone’s minds.  Even within the nail art communities, credit to original nail art designers often gets lost as clients frequently request exact replications of designs they found online, often missing original designers’ names and social media tags. However, as nail art copying becomes more common, nail artists are taking their battle to social media to get the recognition they deserve. 

In June 2022, press-on nail brand Scandal Beauty noticed Nikita Dragun, a famous social media influencer, released press-on nail sets packaged as “Scandal Press Ons,” with designs remarkably similar to Scandal Beauty’s own sets.[33]  Scandal Beauty took to TikTok to compare them,[34] further alleging that the influencer “ordered from the brand eight months” prior, clearly stealing its design.[35]  Unfortunately, the design at issue was of a simple black French tip on medium-length Coffin-shaped nails— a standard design that looks similar due to stock packaging.[36]  No other public statements were made by either party, and Nikita’s “Scandal Press Ons” are still available for purchase to this day.[37]

While most people can agree that a black French tip design is not creative enough to be protected through copyright, what about ghosts for Halloween?  In September 2021, nail artist Sigourney Nuñez was sent a product link to ghost nail decals on the fast fashion site, Shein, by one of her followers.[38]  “My photo, my hands, from . . . 2019 is on their website without my permission, and they’re selling decals with my look for . . . $2,” the artist posted in a video on her Instagram page.[39]  Nuñez created and posted the viral ghost design in 2019 and reposted it in 2020, noting how honored she felt with many other followers, inspired by the design, recreating her look.[40]  She also stated that other creatives reached out to her saying that the same thing happened to them, too.[41]  Perhaps Shein thought the photo was a stock product image, or the ghosts were generic enough that it would not be copyright protected, but often, it seems as if Shein has no fear of copying any artist or designer’s works.[42]  Nevertheless, because the product link used the artist’s exact image to pass off as their own, when contacted by Nuñez, Shein took it down within a week.[43]

Things get a little more complicated when a brand tries to profit from designs inspired by an artist’s signature looks.  Park Eunkyung is a famous celebrity Korean nail artist that started many trends with her signature designs, and is widely known for the “glass nail trend” in 2015.[44]  Her glass nail design was published in “pretty much every single mainstream beauty and lifestyle publications.”[45]  Eunkyung released her own line of glass nail stickers later that year, and continued to create more global trends—like diamond and wire art nails—and collaborations with sticker and press-on nail brands to allow customers to have the same nail looks at home.[46]  In 2017, she was “in talks with Sally Hansen,” a major American nail brand, for potentially designing nail art or co-creating products.[47]  After conversations went cold, Eunkyung saw that Sally Hansen released their own “K-design” nail stickers, featuring glass, diamond, and wire nail art, with no accreditation to Eunkyung.[48]  Eunkyung reached out, but the brand denied that the designs in the collection are Eunkyung’s, stating that “‘basic shapes such as hearts, lips and wavy lines, or patterns resembling broken glass, are not ownable.’”[49]  The brand admitted that while Eunkyung was an inspiration, “she was not the only, nor the first, source of excitement around these trends" and that similar trend references to the K-design nail stickers can be found on social media since 2012.[50]  While it is true that basic shapes are not copyrightable, more intricate designs might be subject to protection.[51]  For example, when a design is immediately associated with an artist, they might have a trade dress argument, and “that design itself can serve as a trademark much the same way a name or logo can serve as a trademark.”[52]  Eunkyung took to social media to express her disappointment as a “first attempt to litigate,” a tactic that many artists with limited resources use.[53]  For Eunkyung, it seemed to work; the products were taken down off shelves in a few months.[54]

Both Nuñez and Eunkyung had a significant number of followers, and it greatly benefitted their battles for accreditation and wrongful art usage.  For other nail artists in similar situations, they might not be as lucky.  About 78% of nail salon employees nationwide are low-wage workers.[55]  The vast majority of them do not have a major social media following that would be powerful enough to convince businesses to take down products that use their art.  One of the only hopes to protect nail artists is to change the social stigma of the nail industry so their creativity and labor get the recognition they deserve.  Maybe then, businesses will think twice before appropriating a nail design—and, amongst everyone, nail art will be taken more seriously.

Cover photo courtesy of Christina Lin (@sitwithchris), Instagram (May 23, 2021), https://www.instagram.com/p/CPPQn7TMsZ7/?igshid=YmMyMTA2M2Y=.

[1] Angela Johnson, Nail Salon (Stand Up Comedy), YouTube (Feb. 7, 2007), https://www.youtube.com/watch?v=SsWrY77o77o&ab_channel=ComedyTime.

[2] Laurel Naversen Geraghty, When a Salon Is Unsanitary, a Bad Nail Job Is a Customer’s Least Worry, N.Y. Times (May 4, 2006), https://www.nytimes.com/2006/05/04/fashion/thursdaystyles/when-a-salon-is-unsanitary-a-bad-nail-job-is-a.html.

[3] Yvette Manes, 13 Horror Stories That Will Scare You Out of Ever Getting a Manicure Again, Insider (Apr. 24, 2018), https://www.insider.com/nail-salon-horror-stories-2018-4.

[4] Veronica Chu, I’m So Sick of the Stigma Around Vietnamese Nail Salons, The Kit (Mar. 24, 2021), https://thekit.ca/beauty/stop-asian-hate-vietnamese-nail-salons.

[5] Alicia Victoria Lozano, California Gov. Newsom Says Community Spread Started at Nail Salon, NBC News (May 10, 2020), https://www.nbcnews.com/news/us-news/california-gov-newsom-says-community-spread-started-nail-salon-n1203491.

[6] Id.

[7] Id.

[8] Preeti Sharma et al., Nail Files: A Study of Nail Salon Workers and Industry in the United States, UCLA Labor Center (Nov. 2018), https://www.labor.ucla.edu/publication/nail-files/.

[9] U.S. Dep’t of Just. & U.S. Dep’t of Health & Hum. Serv., Raising Awareness of Hate Crimes and Hate Incidents During the COVID-19 Pandemic, https://www.justice.gov/file/1507346/download.

[10]Lozano, supra note 3.

[11] 8 Dead in Atlanta Spa Shootings, With Fears of Anti-Asian Bias, N.Y. Times (Mar. 26, 2021), https://www.nytimes.com/live/2021/03/17/us/shooting-atlanta-acworth.

[12] Jessica Defino, Is This the End of the Manicure?, N.Y. Times (Nov. 25, 2020), https://www.nytimes.com/2020/11/05/style/self-care-is-this-the-end-of-the-manicure.html.

[13] Id.

[14] What Exactly Is Japanese Gel? Let’s Identify the 5 Key Features of Japanese Gel!, Leafgel (Sept. 30, 2019), https://www.leafgel.com/post/what-exactly-is-japanese-gel-let-s-identify-the-5-key-features-of-japanese-gel.

[15] Id.

[16] Nail Labo, https://naillabostore.com/pages/about-us (last visited Mar. 14, 2023).

[17] Rachel Treisman, UV Nail Dryers May Pose Cancer Risks, a Study Says. Here Are Precautions You Can Take, NPR (Jan. 26, 2023), https://www.npr.org/2023/01/26/1151332361/gel-nails-cancer-manicure-safe.

[18] CBS News, TikTok (Feb. 13, 2023), https://www.tiktok.com/t/ZTRv85VDd.

[19] Narina Chan (@narinanails), Instagram (Jan. 21, 2023), https://www.instagram.com/reel/CnrqfsghR7T/?igshid=YmMyMTA2M2Y=.

[20] Melinda Wenner Moyer, Are Gel Manicures Dangerous?, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/well/live/gel-manicures-uv-light-cancer.html.

[21] Id.

[22] Id.

[23] Maddox (@ballpit_nails), TikTok (Dec. 12, 2022), https://www.tiktok.com/t/ZTRv824G8/; Timothy (@timsnailstudio), TikTok (Sept. 24, 2022), https://www.tiktok.com/t/ZTRv8DFVV/.

[24] Miho Okawara (@mihonails), Instagram (Mar. 20, 2023), https://www.instagram.com/p/CqBzH2_vP9_/?igshid=YmMyMTA2M2Y=.

[25] Britney Tokyo (@britneytokyo), Instagram (Feb. 12, 2023), https://www.instagram.com/p/CokRzTbL8Ak/?igshid=YmMyMTA2M2Y=.

[26] Taylor Bryant, The Controversy Surrounding Kylie’s Infamous Lip Kit, Refinery29 (Dec. 15, 2015), https://www.refinery29.com/en-us/2015/12/99200/kylie-jenner-lip-kit-controversy.

[27] Id.

[28] Id. 

[29] Id.

[30] Jenna Rosenstein, Kylie Jenner Just Settled a Lawsuit With One Instagram, Harper’s Bazaar (Jan. 24, 2017), https://www.harpersbazaar.com/beauty/news/a20109/kylie-jenner-makeup-lawsuit/.

[31] Id.

[32] Id. 

[33] Nikita Dragun Accused of Stealing Nail Designs for Makartt Collaboration, Centennial Beauty (June 7, 2022), https://centennialbeauty.com/nikita-dragun-accused-of-stealing-nail-designs-for-makartt-collaboration/.

[34] Scandal Beauty (@scandalbeauty), TikTok (June 3, 2022), https://www.tiktok.com/t/ZTRv8kE3m/.

[35] Centennial Beauty, supra note 31.

[36] Id.

[37] Makartt, https://makartt.com/products/makartt-x-nikita-dragun-scandal-press-ons (last visited Mar. 14, 2023).

[38] Sigourney Nuñez (@nailartbysig), Instagram (Sept. 8, 2021), https://www.instagram.com/p/CTlYcYonHg7/.

[39] Id.

[40] Sigourney Nuñez (@nailartbysig), Instagram (Oct. 24, 2019), https://www.instagram.com/p/B4AkmJYlehd/.

[41] Nuñez, supra note 36.

[42] Sharon Pruitt-Young, Why Indie Brands Are at War With Shein and Other Fast-Fashion Companies, NPR (July 20, 2021), https://www.npr.org/2021/07/20/1018381462/why-indie-brands-are-at-war-with-shein-and-other-fast-fashion-companies.

[43] Sigourney Nuñez (@nailartbysig), Instagram (Sept. 14, 2021), https://www.instagram.com/reel/CT0O5pDB-ev/.

[44] Cheryl Wischhover, The Perennial Battle of Small Artist Versus Big Brand: Beauty World Edition, Racked (Mar. 29, 2018), https://www.racked.com/2018/3/29/17175926/sally-hansen-unistella-eunkyung-park-k-beauty-nails.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Sharma et al., supra note 6.