Runway models are not performers. Are you sure? Look closer…

Today, models somewhere walk down the runway almost every week some place in the world, and not just during ‘the Big Four’ Fashion Weeks that take place in Paris, Milan, New York and London. This makes for yards of fabric worn on miles of runway by countless numbers of models every year.  The upshot is that fashion generates a dizzying amount of new intellectual property rights each season. But which of these rights go to the average model, if any? 

The short answer would seem to be — “none”. Runway models don’t design the clothes, nor do they hold rights to the brands or the show itself. As such, runway models can be perceived as contributing little creative input in any of the ‘works’ put on the runway. Although they are on centre stage, runway models would seem to be invisible from the perspective of intellectual property – at least for the moment. 

Yet, they walk. Not just any walk, they walk ‘the’ walk: they ‘catwalk’. Models’ ‘catwalk’ on the runway in a timed, edited and carefully staged manner per the instructions of the fashion designers or their artistic directors. Most fashion commentators would agree that runway shows have become more and more sophisticated in their orchestration. So much so that, in France, fashion designers faced no difficulty securing copyright protection to prevent the unauthorized distribution of photographs catching glimpses of their runway. These were of course the facts tried in Ashby v Gaulme, Kenzo et Lacroix (2008), better known for its application to the European Court of Human Rights (Ashby Donald and Others v France [2013] ECHR 28; see here for a previous post on the decision). Following Ashby, many have subsequently argued that other jurisdictions, such as the UK, would likely find fashion shows eligible to copyright protection under their own national laws  as well (here and here). 

So here we are, with copyright works (fashion shows) being interpreted (catwalked) by performers (runway models). Can models then claim performers’ rights under intellectual property law? This GuestKat argues they can. Here are three ways they could make this happen under UK law.

Claim 1. Runway modelling is a ‘dramatic performance’ (Section 180(2)(a)) of the CDPA 1988)

The Copyright, Designs and Patents Act 1988 (CDPA) gives a list of performances eligible for performers’ rights under Section 180(2). One  such category is ‘dramatic’ performances. There is to date no precise definition of what ‘dramatic’ means in the context of performances.

If we look at copyright case law we find that ‘dramatic’, in the phrase ‘dramatic work’, is defined as a ‘work of action’, ‘capable of performance’ which displays a modicum of dramatic unity so that the substance of the work is not left to chance or mere randomness (as per Norowzian v Arks Ltd (No 2) [2000] EMLR 67; Banner Universal Motion Pictures (2017) para 43-45 (Snowden J); The Ukulele Orchestra of Great Britain (2015) para 104-105 (Hacon J)).

Runway modelling could arguably fit this rather broad definition: it involves action, elements of performance, holds an overall artistic and dramatic unity as it is directed and is not left to chance nor randomness.

Claim 2. Runway modelling is ‘any other presentation’ (Section 180(2)(d) of the CDPA 1988)

Clause (d) of Section 180(2) of the CDPA ends the list of protected performances under UK law with the following category: ‘a performance of a variety act or any similar presentation (emphasis added). If we were to take issue with the conclusion that runway modelling fits the ordinary meaning of ‘performance’, say because it is of a different performative nature, the more open-ended phrase of ‘any other presentation’ might be better suited to include models on the catwalk. 

Again, it is open as to what ‘any similar presentation’ means, and whether it should be interpreted in light of the preceding phrase ‘performance of a variety act’ or not -- bearing in mind that the meaning of ‘variety act’ is also uncertain, not having been defined by statute and yet to be tested in court.

Claim 3. Runway modelling is the interpretation of a ‘work’ (1961 Rome Convention, Article 3(b); 1996 WPPT, Article 2(b))

There may be a third legal basis for the protection of models as performers under international law. Both the 1961 Rome Convention and the 1996 WIPO Performances and Phonograms Treaty (WPPT), protect:
‘actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works’ (Article 3(b) of the Rome Convention and Article 2(b) of the WPPT)

Remove a few words from the list and the following definition for protected artists under international law appears:  
 ‘other persons who… otherwise perform literary or artistic works’.

If we apply this formula to the case of runway models, we obtain the following: runway models (‘other persons’) who catwalk (‘otherwise perform’) fashion shows a.k.a. copyright works (‘literary or artistic works’). It seems as though runways models do fit the bill as ‘persons who…otherwise perform literary or artistic works’.

If we construe these international texts as conferring performers’ rights to anyone who interprets a ‘work’ within the meaning of copyright, runway models would have to be extended protection as matter of compliance with international law.

Such an interpretation is based on a literal analysis of the definitions of protected subject matter given by the Rome Convention and WPPT, per the ordinary meaning of the terms they contain. This method of interpretation complies with the Vienna Convention on the Law of Treaties (Article 31 to 34) which requires that

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” (Article 31(1))

Relying on international law to seek protection under the CDPA is mainly relevant to offset the risk of a conservative or narrow interpretation by the court regarding the categories of protected performances listed under Section 180(2). Although international treaties have no direct effect before UK courts, both agreements have been incorporated as part of UK domestic law, thereby binding UK courts to interpret the CDPA and its   categories of protected performances in a manner that complies with the terms of the Rome Convention and the WPPT. In this case, such an approach might compel national judges to extend performers’ rights to runway models.

What transpires is that after a closer inspection of the relevant texts, runway models may, in fact, not be outsiders to the realm of intellectual property law after all. At a time when the EU is looking to reform copyright and neighbouring rights to improve the remuneration of artists (here and here), including performers, models’ representatives and unions, would be well advised to evaluate their claim their rights and take appropriate steps.

Runway models are not performers. Are you sure? Look closer… Runway models are not performers. Are you sure? Look closer… Reviewed by Mathilde Pavis on Friday, July 13, 2018 Rating: 5


Andy said...

For the sake of argument, let's assume this proposal would stand any chance of succeeding at trial. What exactly would be gained, and by whom?

Performance rights split into three groups: property or economic rights, non-property rights and moral rights (realistically the only one which is applicable is the right to be identified as the performer).

While it possible that the model might be required to sign away his/her property rights as a condition of being employed by a fashion house, and similarly any moral rights would be expected to be waived per s.205G, in fact none of that might be necessary. Unlike, say, a performance of Macbeth by the RSC, or a film role by Benedict Cummberbatch, the main (or could that be 'sole') purpose of the catwalk show is to advertse the designs of the fashion house for that particular season, and as such has a very short shelflife. That means that model's 'performance' falls squarely under the heading of a current event, and so the exception found in Sch 2 para 2(1A) (recording a performance for the purpose of reprting current events) would apply in virtually all cases. And in case anyone is tempted to think that doesn't resolve the moral rights issue, s 205E ("The right [to be identified] does not apply in relation to any performance given for the purposes of advertising any goods or services) effectively deals with the moral rights also. That just leaves the perfomer's right to an equitable share of the proceeds of any exploitation of the recording. Since such recordings are largely going to feature in news bulletins or glossy magazine editorials, I very much suspect that we won't be seeing a rush of models wanting to bring test cases over an academic flight of fancy.

Mathilde Pavis said...

Hi Andy - thank you for your comments. Going back to some of your points, here would be my thoughts. I think performers' rights could be relevant to models at macro level rather than what they bring in terms of legal protection strictly speaking. At the moment, there is very little in the form of regulatory framework (in the UK) to ensure decent working conditions (including pay) for models, including runway models. Thing are improving, unions are forming, but change is in slow in coming.

This lack of regulatory framework (or any form of minimum level of legal protection) for models mean that their unions have nothing (or very little) to which anchor their leverage. They have only just recently got their seat at the 'negotiation table'. This means that for the better for models' working conditions mainly replies on the goodwill of the 'big players' (agency, designers etc.). This does not give you much in terms of guarantees or significant/steady progress on these questions. Since we are unlikely to see UK employment reformed soon on this point (not that I am aware of at least)- let's work with what we have got. We have not got much but we (could?) have performers' rights. Hence the post.

In my opinion, the most attractive feature of performers' rights for models isn't so much the economic rights (as you rightly pointed out the business model of runway shows does not lend itself too well to what performers' rights offer - not at the moment at least) but the opportunity for collective bargaining through collecting societies and unions. It could strengthen the hand of models' unions (in the UK, Equity). If runway models are now 'performers' with a representative collecting society - they must be consulted or engaged with at one point or another. It is a (small) step in the right direction, which is likely to be more reliable than just goodwill. Other added bonus (in my view), models could add their weight to existing campaigns for the better remuneration of performing artists carried out by the Actors' Guild, Musicians' Unions etc. Again, this is more of a 'macro' point.

The short shelf-life argument is a very good one - I agree. It makes economic right less relevant and certainly limits the equitable remuneration rights. But the last 10 years has seen runway modelling get into new spaces of the entertainment industries which strong distribution channels: Reality TV. Some of the most profitable franchises are rely on runway modelling performances (Project Runway, Make me a Supermodel etc.).

On the reporting of news event - the European Court of Human Rights rejected the application of that exception for fashion shows in Ashby. Unauthorized fashion photographers had leaked photographs of runway shows via Fashion blog and built their case on the current event and news reporting exception (as you suggest, I think). It was rejected by the French Supreme Court, confirmed by the ECtHR in 2013. The same is likely to apply to performers' rights.

I do agree - there is an element of 'long shot' in that post, but there is a context that may justify going there, and stretching this flight of academic fancy further ;-).

Uncle Wiggily said...

So, what's next? Whether there is copyright in the compilation of clothing and jewelry worn by a model? In the choice and application of makeup? Hairstyles? What about selection and location of body piercings and tattoos? Who is the author?

This business about looking for copyright in and under very nook and cranny and finding it in such silly things as small snippets,headlines, and other improbable places - indeed effectively even in links - is what marginalizes the credibility of EU copyright law in the eyes of the common law world.

I suggest that you run - not catwalk - to start a new cat walking collective, if your really thinks that this is viable, important and worthy of purr-suit.


Uncle Wiggily

Mathilde Pavis said...

I hear you - Uncle Wiggily. Copyright is everywhere... and, to a large extent, it has gone too far. Yet, do we see policy-makers stating we need 'less copyright'? Not much. Perhaps showing the extent to which copyright, and its neighbourings, have come to apply to all things (including models' catwalk as the law currently stands in my view) is what is needed to force a fundamental re-think of copyright.

In response to the comment 'What's next...copyright in the compilations of clothes jewelry, in tattoos, headlines...etc.'. We are already there. To some extent courts have devised tools to limit copyright 'millefeuilles' made of works, within works within works. Perhaps - we can trust them to continue (to try) to keep copyright in check until it is adequately reformed.

But as the law stand, there is scope to expand rights - so why wouldn't models take advantage of it, until appropriate legislation in the more appropriate fields is passed (say employment law)? There have been more 'perverse' use of copyright.

These are my modest two cents on these questions!

Andy said...

Sorry to return to the fray, Mathilde, but I don't think 'policymakers' (in the sense of the Commission or individual politicians) have much to do with setting the agenda for copyright 'reform’ these days. That’s left to the lobbyists. The contraversial Articles 11 and 13 of the draft DSM Directive are all about what the music, film, and newspaper industry want. It’s left to the academic community to put forward a less partisan view. I think Uncle Wiggily’s cynicism is justified.

But that is a long way from your original posting. I've now had a look at the ECtHR judgment in Ashby, although alas, not as yet, the cour de cassation's judgment. From the ECtHR's point of view the main point they had to decide was whether the photographers' Article 10 rights had been overridden, and they really had little to say on the copyright aspect, beyond acknowledging that the French courts had the full margin of appreciation to decide that matter. They also shied away from the point about whether this was an act of news reporting permitted under Article L 122 - 5, again saying this was a matter for the domestic law which the national courts had to decide. And it worth noting in passing that the French Intellectual Property code provides a much narrower definition of the types of current events which fall within this exception.

Also, from my reading of the ECtHR judgment, the French court decided that there had been (Chapter I) copyright infringement, rather than infringement of a performance right per Chapter II of the Code. In other words, the cour de cassation was considering the designs themselves as the works in need of protection, and not the performances of the models. I’m not sure this really supports your slightly more emphatic implication that this case marked a first step towards acknowledging that models qualify for performance rights. The strong copyright protection for the French fashion industry existed well before this case.

I fully acknowledge and support your altruism in wanting to improve the working conditions for models, but I cannot support the view that the end justifies the means, especially when a direct path via employment law would be more efficacious.

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