Fashion shows and social networks

Indeed, with the advent of social networks, fashion houses have been able to adapt to share more and more with the public, ensuring a high media visibility. Thus, some major fashion houses broadcast live and streaming on the Internet the fashion shows, satisfying a large and curious audience. When the reproduction on the Internet is not orchestrated or authorized by the company itself, legal problems are bound to arise.

Case law has been established in this area for many years.

What rights do the fashion houses have on the fashion shows?

The fashion show: a work of the mind

According to the article L.112-1 of the Code of the intellectual property any work of the spirit can profit from a protection ” whatever the kind, the form of expression, the merit or the destination of it “.

Article L112-2 of the Intellectual Property Code, which provides a non-exhaustive list of creations that can be protected by copyright, does not expressly list fashion shows as intellectual works.

The question then arose as to whether fashion shows could be considered copyrightable.

In a decision rendered on January 17, 2007, the Paris Court of Appeal ruled that fashion houses hold copyright over their creations as well as over their fashion shows, which are intellectual works benefiting from the protection of the Intellectual Property Code as long as they are original in nature (CA. Paris, 13th Chamber, January 17, 2007, D.2007).

In 2008, the Court of Cassation considered that fashion shows benefited from the status of copyrighted work (Cass. crim., Feb. 5, 2008, n° 07-81.387).

In this case, three photographers were sued by the French Federation of Couture and other high fashion companies such as Chanel, Christian Dior Couture, Louis Vuitton Malletier and Kenzo, for counterfeiting intellectual works in violation of copyright.

The photographers had sent to the company Viewfinder Inc, a company under American law, photographs taken during various fashion shows held in Paris in March 2003.

Shortly after the fashion shows, the American company had published the litigious photographs on a website.

The photographers had been authorized to take pictures of the fashion shows, but they had not been authorized to publish them on the website owned by the Viewfinder company.

The Court of Cassation then ruled that: ” (…) the creations and the fashion shows are works of the mind on which the fashion houses enjoy a property right protected by the code of the intellectual property, (…) that by photographing several fashion shows and by contributing from the French territory to the on-line diffusion of the images thus obtained, without authorization of the holders of the copyright on the creations which they reproduced, on a site to which was not extended the benefit of the press accreditations which they had respectively obtained, Z…, X…, Y…, have committed the offence of counterfeiting of intellectual works in violation of the rights of the authors “.

The fashion houses are therefore holders of copyright on the fashion shows, as long as they present a character of originality, and that they express the personality of their author.

An authorization is necessary before any reproduction of a fashion show

A fashion house holding a royalties on its fashion show and on the creations, the latter has the possibility to authorize or not the reproduction or the diffusion by a third party of the images of its fashion show according to the articles L.122-1 and following of the Code of the intellectual property.

However, the Intellectual Property Code provides, in its article L 122-5, exceptions authorizing third parties to reproduce a work of the mind without prior authorization of the owner.

Thus, according to article L.122-5, 9° of the Intellectual Property Code, the owner of a work of the mind cannot prohibit: ” The reproduction or representation, in whole or in part, of a graphic, plastic or architectural work of art, by means of the written press, audiovisual or online, for the exclusive purpose of immediate information and in direct relation to the latter, provided that the name of the author is clearly indicated “.

However, the aforementioned information exception must be interpreted restrictively so that case law has thus considered that the fashion show, an innominate work, does not fall within the scope of this exception.

Third parties who wish to broadcast a fashion show or images of this show on the internet or social networks, without prior authorization from the fashion house, could not easily hide behind the information exception to escape a conviction for infringement.

Thus, the Criminal Division of the Court of Cassation has rejected the exception provided for by article L.122-5, 9° of the Intellectual Property Code and qualified as infringement the online diffusion of photographs of a fashion show, without having obtained the prior authorization of the fashion house (Cass. crim., Feb. 5, 2008, n° 07-81.387).

This case is important insofar as the litigious broadcasting occurred only a few hours after the fashion show and that the condemned photographers were photographers accredited by the fashion house itself.

However, the website on which the American company published the litigious photographs did not benefit from the scope of the press accreditation previously obtained by the photographers.

Indeed, only the press organs that have subscribed to a press commitment with the French Sewing Federation are authorized to take pictures of the fashion show.

Copyright in the face of freedom of expression

However, this legal case did not stop there, as the convicted photographers had taken their case to the European Court of Human Rights (ECHR) on the basis of freedom of expression.

The ECHR first recalled that the publication of photographs of a fashion show on a website falls within the exercise of the freedom of expression and that the conviction of the applicants for acts of counterfeiting constitutes an interference with the freedom of expression. However, the ECHR considered that the conviction for infringement of the photographers does not violate Article 10 of the European Convention for the Protection of Human Rights protecting in particular the freedom of expression (ECHR, Section 5, Judgment of January 10, 2013, Application No. 36769/08, Ashby Donald and others v. France.)

Indeed, it ruled that ” (…) in view of the particularly wide margin of appreciation available to the domestic authorities, the nature and severity of the penalties imposed on the applicants are not such that the Court can conclude that the interference at issue was disproportionate to the aim pursued.”

In conclusion, the fashion houses own the copyright on the fashion shows, which allows them to broadcast them on social networks while controlling the exploitation that can be made by third parties on the Internet.