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.