Fashion Photographs: Are They a Human Right?

Dr Eleonora RosatiUniversity of Cambridge

A decision at a cold time on a hot topic

Using copyright against

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Freedom of expression

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In the fashion world(or vice versa!)

Summary

• Copyright and freedom of expression as human rights

• Ashby Donald and Others v France (10 January 2013)

• Reporting current events and commercial speech

• What would have happened in the UK?

• What does the ruling mean to fashion industry?

Copyright and freedom of expression as

human rights

Copyright is a property right

• Article 1, Protocol 1, ECHREvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

• Applies to IP: Anheuser-Busch Inc v Portugal (2007)

Freedom of expression is not absolute

Article 10 ECHREveryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. […]

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Protection of couture in France

• “Les crèations des industries saisonnières de l'habillement et de la parure” are considered “oeuvres de l'esprit” protected by copyright (Article L-112-2 No 14 CPI).

• Since 1968 fashion houses have had control over the images (photographs and videos) taken during their shows.

• The author cannot prevent “[l]a reproduction ou la représentation, intégrale ou partielle, d'une oeuvre d'art graphique, plastique ou architecturale, par voie de presse écrite, audiovisuelle ou en ligne, dans un but exclusif d'information immédiate et en relation directe avec cette dernière” (Article L-122-5 No 9 CPI).

• In any case, “Les exceptions énumérées […] ne peuvent porter atteinte à l'exploitation normale de l'oeuvre ni causer un préjudice injustifié aux intérêts légitimes de l'auteur.” (Article L-122-5 CPI)

Ashby Donald and Others v France

(10 January 2013)

Background (I)

• Applicants were 3 fashion photographers who:o were invited to attend a series of fashion shows relating

to women’s collections for autumn/winter 2003-2004;o transmitted the photographs taken to corporation named

Zepelin, without obtaining the required permissions first.

• Zepelin 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 5 fashion houses, sued for copyright infringement.

Background (II)

• Defence rooted within Article 122-5 No 9 (reporting current events) and Article 10 ECHR.

• Tribunal correctionel de Paris (2005), Paris Court of Appeal (2007) and Court of Cassation (2008) found them liable of copyright infringement pursuant to Article 353-2 and -3 CPI (délit de contrefaçon) .

• Paris Court of Appeal ordered them to pay:o fines between EUR 3,000 and 8,000;o damages amounting to EUR 255,000;o for publication of the decision in three professional

newspapers/magazines.

The case before the ECtHR

• Applicants’ arguments: o fashion photographs are tantamount to “information”

and o their publication on a website is protected as freedom of

expression, even if the purpose is commercial.o The public has a right to be informed about current

fashion trends and preventing dissemination of related photographs represents a disproportionate interference with Article 10 ECHR.

o Interference with freedom of expression is subject to 3 conditions:1. Prescribed by law;2. Pursue a legitimate aim;3. Motivated as being necessary in a democratic society.

The response of the Court

• In principle online publication of the photographs in question could have fallen within Article 10.

• However, liability followed prescription by law (CPI).

• Limitation on freedom of information intended to protect the legitimated rights (copyright) of fashion houses.

• No evidence that sanctions had financially “strangled” applicants.

• Commercial speech-character of the publication of the photographs weakened the freedom of expression/information argument.

• Wide margin of appreciation left to national authorities.

Reporting current events & commercial speech

• Exceptions to freedom of expression to be construed strictly and established convincingly.

• Publication of infringing pictures was not related to matter of general interest.o A different outcome if otherwise?o Scope of national exceptions and limitations

What would have happened in the UK?

• Exhaustive copyright subject-matter categorisation o No copyright in fashion creations per se

• But things may have changed: post-Infopaq string of caseso An originality-based scrutiny?

• Originality in photographso No longer sufficient skill, labour or effort? Temple Islands

Collection v New English Teas [2012] EWPCC 1o (Mis-)interpreting Case C-145/10 Painer?

• UK system of exceptions and limitations (under revision)o News reporting: photographs are and will remain

excludedo Criticism and review: of the work

• Alternative forms of protection

UK copyright and freedom of expression

“It is in theory possible that the propensity of an injunction restraining a threatened breach of copyright to impinge upon a defendant's Article 10 [ECHR] right to freedom of expression might occasionally incline the court, on particular facts, to decline the discretionary remedy of an injunction, and leave the claimant to a claim in damages.”

Per Briggs J, Rocknroll v News Group Newspapers [2013] EWHC 24 (Ch), [43]

• Copyright is not immune from Article 10 ECHR scrutiny

• Section 171(3) CDPA allows copyright enforcement be restricted or prevented on grounds of public interest

What does the ruling mean to the fashion industry?

• Judicial willingness to accept that copyright may unduly interfere with freedom of expression: “adding an external human rights perspective to the justification of copyright enforcement” (Voorhoof and Høedt-Rasmussen):o At least in theory: Neij and Sunde Kolmisoppi v Sweden,

or The Pirate Bay case (2013);o CJEU case law (Charter of Fundamental Rights).

• Even in legal systems where copyright extends to fashion, such protection may be superseded by freedom of expression.

• Importance of context in which “infringing” publication takes place.

• In any case, matter in which wide margin of appreciation is left to member states …o Scope of copyright exceptions and limitations.

Is human rights scrutiny the real driver of change??

Or rather CJEU?

Any Questions?

Thank you

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Thanks for your

attention!

eleonorarosati@gmail.com

@eleonora_rosati