Deep-in-thought (??) Victor poses for Vogue France |
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.
Are fashion photographs a human right? The answer is ...
Reviewed by Eleonora Rosati
on
Friday, January 25, 2013
Rating:
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