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.
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