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Friday, 25 January 2013

Are fashion photographs a human right? The answer is ...


Deep-in-thought (??) Victor
poses for Vogue France
Excellent former Kat Kate Manning has brought to the attention of the IPKat a recent judgment of the European Court of Human Rights (ECHR), which has addressed the fashionable, yet far-from-settled, issue as to the relationship between copyright and freedom of expression. The case is Ashby Donald and Others v France. The judgment is available only in French, which is a language this Kat is not tremendously fluent in - so: bear with me French-speaking readers! 

The applicants in this case were three fashion photographers living in New York, Paris and Le Perreux-sur-Marne, respectively. Since 1968 French fashion houses have had control over the images (photographs and videos) taken during their fashion shows. Consequently, those who wish to use such images need to obtain permission first. 

In 2003, the three photographers were invited to attend a series of fashion shows relating to women’s collections for autumn/winter 2003-2004. They transmitted the photographs taken at those events to a corporation named Zepelin, without obtaining the required permissions first. Zepelin then transferred the images to US corporation Viewfinder, which eventually published the images on its website and made them available for free, upon payment of a price, and also for actual sale.  

The Fédération française de la couture, along with five fashion houses, sued the three photographers for copyright infringement.

Cat-walks can be very demanding,
even for models ...
The Paris Court of Appeal held that the fashion houses in question held rights in their fashion creations. These were "œuvres de l’esprit" (works of the mind) and, as such, were subject to copyright protection in that they were sufficiently original. As a result, the three photographers were held liable of copyright infringement.

Ashby Donald and the other two photographers appealed the decision before the French Court de Cassation, claiming that what they had done was covered by the exception to copyright infringement for the sake of news reporting and information purposes, under Article 122-5 No 9 of the French Code de la Propriété Intellectuele, and also Article 10 ("Freedom of Expression") of the European Convention on Human Rights. The French Supreme Court dismissed the action, so the three photographers decided to bring their case down to Strasbourg.

The ECHR declared their application admissible and not manifestly ill-founded, but concluded on the merits of the case that the conviction of the applicants because of breach of the Code de la Propriété Intellectuele did not amount to a violation of Article 10 of the Convention by the French authorities. 

According to the applicants, those fashion photographs could be classified as information and their reproduction on a website was an exercise of their freedom of expression, even if the purpose was commercial in nature. They argued that the public has a right to be informed about current fashion [Merpel wholeheartedly agrees] and that preventing the media from disseminating these photographs represented a disproportionate interference with this right.

... Yes, definitely.
According to the ECHR, the exercise of the freedoms envisaged by Article 10, eg the freedom to hold opinions and freedom to receive and impart information and ideas, is subject to duties and responsibilities and may be also subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society. In particular, a conviction or any other judicial decision restricting a person’s or an organisation’s freedom of expression must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by the law and pursuing a legitimate aim.

This said, in principle online publication of the photographs in question could have fallen within Article 10 of the Convention. However, the applicants had been found liable of copyright infringement, pursuant to Articles L 335-2 and 3 of the Code de la Propriété Intellectuele. The alleged interference with their freedom of expression was therefore prescribed by the law. In addition, such limitation was compliant with Article 10(2), in that it was meant to protect the rights of copyright fashion houses whose designs were the subject of the photographs in question.

A thorough comment on this case has been published on the ECHR Blog. However, it may be worth discussing this decision under three different lenses:

1.    The distinction made by the ECHR between expressions relating to an issue of public interest and "commercial speech" which is not intended to contribute to a debate of general interest;

2.    Once again, the relevance of fundamental rights to copyright discourse: see for instance the recent ruling of the Court of Justice of the European Union in Case C- 70/10 Scarlet or Case C-360/10 Netlog (here, here, here;

3.    The fact that there seemed to arise no fundamental right-related issues in relation to a broad understanding of copyright scope, as resulting from the protection enjoyed by fashion garments under French law.

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