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Copyrights and freedom of speech on the catwalk

Twice a year in four fashion capitals of the world everyone turns their gaze towards catwalks and with bated breath follows the newest creations of the most renowned designers. Last Wednesday – 11th March – the fashion week in Paris ended another season of fashion shows and forced all enthusiasts to wait till September for another edition of madness which traditionally begins in New York.

Right after the shows, the fashion market is swamped with hundreds of pictures from catwalks that are published in both more and less specialized magazines, and also in the net. In this context, one should not forget about the consequences of unauthorized commercial distribution of such pictures. Attention! The following is based on a true story.

The heroes, most probably against their will, of our story are three gentlemen – Robert Ashby Donald, Marcio Madeira Moraes and Olivier Claisse – who specialize in fashion photography. The story begins in 2003 when Olivier Claisse made some pictures of shows that took place in the course of the fashion week in Paris. The pictures were then published jointly by all three gentlemen on the Viewfinder website run by them. Unfortunately, there was one very important element missing – accreditation to Olivier Claisse issued by Fédération Française de la Couture, du Prêt-à-Porter des Couturiers et des Créateurs de Mode and related consent for commercial use of pictures. As a consequence, our heroes were sued for the unauthorized distribution of pictures before the court in Paris held that copyrights to designs depicted on the pictures were infringed and ordered the photographers, in particular, to pay 255 000 Euro to the designer and five fashion houses. The sentence was upheld by the appellate court and the court of cassation, so our heroes decided to submit a compliant to the European Court of Human Rights arguing the provisions pursuant to which they were sentenced are in conflict with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provide for the freedom of speech.

Article 10 of the Convention states exercising the freedom of expression “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”. According to the photographers, imposing penal sanctions on them and charging them with significant financial consequences was in violation with the scope of restrictions of the freedom of speech, as specified in the Convention. In addition, the applicants also argued their actions remained within the boundaries of the exception, provided for by the French copyright law, in light of which distribution of the work is permitted if such distribution was of purely reporting or informative nature.

In the decision closing the proceedings (judgment of January 10, 2013 in the case: Ashby Donald and others v France, complaint no. 36769/08, available in French under the address: http://hudoc.echr.coe.int/sites/fra/pages/search.aspx#{%22itemid%22:[%22001-115845%22]}) the European Court of Human Rights rejected the position held by the heroes in our story and determined that the Convention was not violated. Although the Court maintained that copyrights may be restricted in case of conflict with the freedom of speech, but such restriction will occur when the conflict arises in connection with public interest and public debate. In the opinion of the Court, actions of photographers were not a voice in the public debate and did not have a purely informative purpose, but constituted a kind of commercial activities that do not deserve to be specially protected pursuant to Article 10 of the Convention.

However enlightening this story may be for photographers from Paris, the Court, albeit indirectly, addressed a pretty serious matter – considering the conflict between copyright and the freedom of speech it allowed the second value to have the upper hand, and for this reason we may assume that in certain circumstances using another person’s works – even if not formally within the boundaries determined e.g. by the permitted use and the holder’s consent – may be justified on the grounds of freedom of speech…

#copyright law #fashion photography #fashion week #freedom of speech #photos

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