“Fashion is not something that exists in dresses only. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, and what is happening”. This quote by Coco Chanel encapsulates the point that fashion is not an isolated industry and involves many facets. From the time a designer puts the idea or design of a garment on paper to the tangible production of such design, packaging, marketing, advertisement, showcasing and promotion, various intellectual property elements like copyright, trademark, performer’s rights and even patents play an important role. This article will deal with the aspect of showcasing a designer’s work through runway models and the rights such models are entitled to.
A. Runway Models and Performance
Before answering the question of whether runway models can be conferred performer’s rights, it is important to understand who runway models are and whether their nature of work can qualify as a performance. Runway models can be usually defined as people who wear and exhibit fashion designs by walking down a runway (a long winding platform) on a certain occasion (a fashion show wherein fashion designs are displayed) in a certain manner (a catwalk or any other type of specific walk).
To stage a runway show, lining up the designs and displaying the designs using various props requires a certain level of creativity. The aesthetics, lighting and the dresses in itself are imperative to putting up a fashion show. Nevertheless, the need for talented models who can gracefully showcase the designer’s work is crucial in a fashion show by walking confidently and in a way that accentuates the best designs or features of the dress is crucial. But would walking in a line while wearing and displaying designs require creativity or effort? This is where it becomes crucial to understand the fact that it is not just any normal walk that is done by models on the runway. It is a specific type of walk which needs to be practised and done to make sure the best features of the design donned by them get highlighted. Adding personal touches to the pose or walk to ensure the audience pays attention to the design is where creativity factors in. It requires effort to get accustomed to unconventional designs, footwear or jewellery, the scrutiny of the audience, holding the attention of the audience and to walk with perfect coordination no matter how foreign the design seems to the person, which requires skill.
B. Granting Performer’s Rights to Runway Models:
Performer’s rights are also called neighbouring rights or related as they arise from the related copyright work. Performance and performers are defined in Section 2 (q) and (qq) respectively. A performance is said to be “any visual or acoustic presentation made live by one or more performers” and a performer could be an actor, singer, dancer or any other person who exhibits a performance as per the Act. Section 38 of the Act defines performer’s rights. It states that “Where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance.” Basing the argument on Section 2(q) of the Copyright Act, a performance requires a visual component made live by a performer of a specific performance, runway models can be brought under the ambit of “visual performance” as they are involved in exhibiting fashion designs that are protected by copyright by performing a walk that does involve skill and creativity.
Section 38A bestows special rights to performers such as broadcasting, reproduction, and communication of it to the public among many. The basis of performance mostly stems from a copyrighted work. If the work is copyrighted, the performance of such work is protected. Thus, the major question that arises is what is the copyrighted work in this case from which the performer’s rights arise and who is the author of such work? If the designs a model is wearing are considered, then the 2D format or the blueprint of the designs that include sketches can be copyrighted but not the dress or fabric in itself. The patterns on the fabric may be copyrighted. The 3D dress in itself can be protected under industrial design and not under copyright. It is important to note at this juncture that the legislation regarding performer’s rights varies from country to country; some countries provide performance protection independent of the copyright while other countries ensure that the rights co-exist. Thus, the onus exists on a country’s legislation to resolve the ambiguity about copyrighted designs, authors and performer’s rights specific to runway models.
C. The View of Courts Concerning Runway Models Availing Performer’s Rights:
In the case of Ashby Donald and Others v. France,[1] the French Supreme Court held that fashion shows can be copyrighted. In the aforementioned case, three photographers were sued for copyright infringement by various French couture and design houses for uploading pictures of a series of fashion shows without having any exclusive agreement or contract with any fashion houses.
In 2005, two Thai supermodels[2], Metinee Kingpayom and Sara Lane sued Dapper, a fashion company that had hired the supermodels for a runway show. The company had also hired photographers to promote the show by publishing the pictures in several magazines. The supermodels claimed against the use of their photographs by Dapper. The Thailand Intellectual Property and International Trade (IP&IT) Court ruled in favour of the supermodels and said that the act of “catwalk” was a performance and hence the plaintiffs were entitled to “performer’s rights” and Dapper was liable for infringing the rights of the supermodels. However, the Supreme Court of Thailand overturned the IP&IT Court’s decision as it was of the opinion that the plaintiffs did not satisfactorily establish that the runway models displaying apparel products could be considered as “dramatic arrangement/ work” that could be considered as “performance” as per the Copyright Act of Thailand and hence be protected under “performer’s rights”.
The jurisprudence set by Ashby blurs the lines between a model and a traditional performer. Further, Article 9 of the Rome Convention 1961[3] states that “Any Contracting State may, by its domestic laws and regulations, extend the protection provided for in this Convention to artists who do not perform literary or artistic works”. Thus, this provision allows the contracting states, to frame legislation conferring rights to performers whose work is not traditionally or societally looked upon as a “performance”. But India has never been a party to the Rome Convention, 1961. It is necessary for India to either ratify the Rome Convention or pass legislation expanding performers’ rights domestically. Starting with recognising and defending the rights of runway models, recognised as performers. Runway models must be granted performer’s rights since they have a moral right against the unauthorised use of their photographs for commercial purposes and unapproved broadcasting of their work. As such, it is high time for India to take proactive measures to ensure the legal framework adequately protects the rights and interests of all performers, including runway models.
[1] ECtHR (5th section), 10 January 2013, case of Ashby Donald and others v. France, Appl. nr. 36769/08
[2] Taweepon, S. (2012, November 2). Copyright on the catwalk. Lexology. https://www.lexology.com/library/detail.aspx?g=44fc5fb9-2154-458b-85b0-7578950ae767
[3] International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, opened for signature October 26, 1961, 496 U.N.T.S. 43 (entered into force April 18, 1964)
References
A.Wallace. (2019, June 21). Models could own the rights to their catwalk sashay. The Centre for Science, Culture and the Law. https://sculecentre.ex.ac.uk/models-could-own-the-rights-to-their-catwalk-sashay/
Buyse, A. (n.d.). Copyright vs Freedom of Expression Judgment. https://www.echrblog.com/2013/01/copyright-vs-freedom-of-expression.html
Pavis, M. (2018b, July 16). If runway models are performers. . is France in breach of its international obligations? The IPKat. https://ipkitten.blogspot.com/2018/07/if-runway-models-are-performersis.html
Pavis, M. (2018a, July 13). Runway models are not performers. Are you sure? Look closer. . .. The IPKat. https://ipkitten.blogspot.com/2018/07/runway-models-are-not-performers-are.html
Taweepon, S. (2012, November 2). Copyright on the catwalk. Lexology. https://www.lexology.com/library/detail.aspx?g=44fc5fb9-2154-458b-85b0-7578950ae767
Varese, E., & Mazza, V. (2019). The Protection of Fashion Shows: An Uncharted Stage. Laws, 8(4), 29. https://doi.org/10.3390/laws8040029
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