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Whether a human body part may qualify as a \u201ctangible medium of expression\u201d for Makeup copyright purposes?<\/span><\/strong><\/p>\n Mourabit is a makeup artist, and in 2013, he \u201cdid the make up artistry\u201d for a fashion photo shoot organized by W Magazine. Klein was the photographer at the Photo Shoot.<\/span><\/p>\n <\/p>\n In 2015, Shiseido collaborated with Klein to create a holiday makeup collection. Defendants used one of Klein\u2019s photographs from the Photo Shoot to promote and advertise their new makeup line. The Photograph depicted Juliette Lewis, an actress, wearing makeup that Mourabit had applied during the Photo Shoot.<\/span><\/p>\n According to the complaint, in their promotional materials, Defendants did not credit Mourabit for Lewis\u2019s makeup, instead implying to consumers and the public that Nars, another makeup artist, was responsible for the makeup artistry depicted in the Photograph.<\/span><\/p>\n In June 2018, Mourabit obtained a copyright registration for a drawing of the makeup artistry that Lewis showcased during the Photo Shoot. Two months later, Mourabit filed a complaint in the New York State Supreme Court alleging copyright infringement based on his copyright registration for the Drawing , as well as state law claims of unjust enrichment, unfair competition\/misappropriation, and violation of New York General Business Law (\u201cGBL\u201d).<\/span><\/p>\n On September 12, 2018, Shiseido removed the case to the Southern District of New York. On December 13, 2018 Mourabit conceded in a court filing that his copyright claim based on the registered Drawing should be dismissed. The parties continued to disagree, however, as to whether Mourabit\u2019s state law claims were preempted by the Copyright Act.<\/span><\/p>\n The district court dismissed Mourabit\u2019s copyright infringement claim after concluding that Mourabit abandoned it by his earlier concession. Next, the district court concluded that the unjust enrichment and unfair competition\/misappropriation claims were preempted by the Copyright Act.<\/span><\/p>\n The district court noted that Mourabit \u201cappears to allege that his state law claims arise from his \u2018makeup artistry,\u2019 rather than the copyrighted drawing,\u201d and thus focused its analysis on the application of makeup during the Photo Shoot.<\/span><\/p>\n Accordingly, the district court held that Mourabit\u2019s state claims fell within the preemptive scope of the Copyright Act because makeup artistry fits within the \u201cpictorial, graphic, and sculptural works\u201d category and could be \u201cfixed in a tangible medium of expression.\u201d Judgment entered July 8, 2019. This appeal followed.<\/span><\/p>\n Mourabit\u2019s appeal focuses, on the first prong of copyright preemption \u2013 that is, the \u201csubject matter requirement.\u201d Mourabit argued, in particular, that the work of makeup artistry that he developed for the Photo Shoot (the \u201cMakeup Artistry\u201d) does not meet the subject matter requirement because (a) it does not fall within one of the categories of copyrightable works set forth in 17 U.S.C. \u00a7 102, and (b) the Makeup Artistry was not fixed in a tangible medium of expression.<\/span><\/p>\n