Can Runway Models Claim Performer’s Rights Under Copyright Laws?

31st May, 2023 - 7:25 am Categories: Copyright 0 Comments

Introduction

Models are an integral part of the fashion industry. They commercialize the fashion business in a variety of ways, from having an outstanding walk on the runway to posing with creative and artistic incentives. Model’s rights, on the other hand, have not been made explicit. The purpose of this article is to examine model’s performance under intellectual property law (copyright law in particular) to determine whether model’s rights may be called performer’s rights.

Understanding Performer’s Rights Through International Jurisprudence

Performers are able to reach a broader audience through their literary and artistic works by utilising their skills and creativity. Multiple copies of the performer’s works are made available owing to the new technical mediums. The significance of performer’s rights and their exploitation is slowly being understood on a global scale. Initially, the Berne Convention, the oldest international law governing copyright laws, sparked steps to defend performer’s rights. However, because of the onset of World War II, the subject of performer’s rights was set aside due to differences of opinion among the members. Later, performer’s rights were recognized in 1961 when members of the United International Bureaux for the Protection of Intellectual Property (BIRPI), the predecessor to the present World Intellectual Property Organization (WIPO), agreed to the draft rules for the protection of performers by the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations[i] (Rome Convention, 1961).

[Image Sources : Shutterstock]

Article 3(a) of the Rome Convention defines ‘performers’ as “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works.”  Performer’s rights are mainly recognized under copyright law. The term of protection to be granted under this Convention is for a minimum duration of 20 years[ii]. Article 7 gives the following protection to the performers:

• They have the right to prevent unauthorised broadcasting or public communication through means other than broadcasting without their consent.
• They have the right to prevent others from recording their live, unfixed performance without getting their consent.
• They have the right to prevent others from reproducing their live performance without their consent and from commercially exploiting it for any other reason without obtaining their consent.

The TRIPS Agreement further strengthens the terms of the Rome Convention. When the WIPO Performance and Phonogram Treaty (WPPT)[iii] was established in 1996, it was the first international treaty to acknowledge the moral[iv] and economics rights[v] of performers. Under Article (2a) of the WPPT, performers are “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.” Chapter II further mentions various rights offered to the performers including right of reproduction[vi], distribution[vii], rental[viii] and making available of fixed performances[ix]. WIPO adopted the Beijing Treaty on Audio-Visual Performance[x] in 2012, wherein the performers in the audio-visual domain were extensively considered.

Extending Performer’s Rights To Models

Despite the fact that copyright laws have been established to safeguard the rights of performers under international laws and agreements, models are not specifically mentioned. The definition of ‘performers’ offered under Article (3a) of Rome Convention and Article (2a) of WPPT respectively, specifically the following lines, leave scope for a certain level of interpretation:

“…or otherwise perform literary or artistic works.”

“…or otherwise perform literary or artistic works or expressions of folklore”

Models conduct a precise walk, i.e. catwalk, or posture, for a fashion presentation that is meticulously planned, staged, and structured, awhile interpreting the end of these definitions. They serve as a visual aid for those who create works of art. If these international clauses are interpreted as granting performance rights to anyone who interprets a “work” under copyright laws, models can claim intellectual property protection for their performance.

Further, Article 9 of the Rome Convention stipulates that a Contracting State’s domestic laws and regulations may expand the protection set forth in the Convention to include performers of non-literary or artistic works[xi]. Herein flexibility to consider models as performers under these treaties and laws are seen to be encouraging.

In the U.K. case of Ladbroke v. William Hill[xii], it was emphasized that ‘vast amount of skill, judgment, experience and work’ had to be done to create something that could be protected under copyright law. Models engage in collective arrangements that include choreography, visual accuracy, skills, and designer’s input to produce a dynamic show. In the landmark case of Ashby Donald and Others v. France[xiii] decided by the European Court of Human Rights, a fashion house claimed copyright on fashion shows so as to prohibit photos of their presentation from being distributed. In the Court of Appeal, it was cited that fashion houses own copyright on designs and fashion displays, which are considered ‘works of mind’. Fashion houses have the authority to permit and disallow the reproduction or dissemination of their creations in this regard.

Acknowledging the jurisprudence laid down in Ashby’s case and the relevant international definitions, if the interpretation of ‘works’ is taken in the ordinary literal sense, models can claim performer’s rights under copyright law.

Conclusion

The arguments pointed out above provide a sense of technicality to address whether performer’s rights can be extended to models. It is plausible to claim that the model’s performance generates revenue for fashion business, and thus denying models performer’s rights might possibly violate international obligations and qualitative labour. By interpreting the term “performer” in its literal sense, and while also considering its ordinary meaning, it can be said that models possess an attribute that contributes to performance. It is important to interpret models work as a performer’s work. Considering the rising area of intellectual property law in the fashion industry, the rights of the models can be further safeguarded through these acknowledgements. It will be beneficial to frame consistent policies that protect the rights of the models as perf.

Author : Tejaswi D Shetty,  A Student at Sri Dharmasthala Manjunatheshwara Law College, Mangalore, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[i] International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, (Oct. 26, 1961), https://www.fim-musicians.org/wp-content/uploads/EN_Rome_Convention.pdf

[ii] Id, Art. 14.

[iii] WIPO Performance and Phonogram Treaty, (Dec. 20, 1996), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_227.pdf

[iv] Id, Art. 5.

[v] Id, Art. 6.

[vi] Id, Art. 7.

[vii] Id, Art. 8.

[viii] Id, Art. 9.

[ix] Id, Art. 10.

[x]Beijing Treaty on Audio-Visual Performance, (Jun. 24, 2012), https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=208966

[xi] Elena Varese and Valentina Mazza, The Protection of Fashion Shows: An Uncharted Stage, MDPI (Nov. 17, 2019), https://www.mdpi.com/2075-471X/8/4/29/pdf.

[xii] [1964] 1 All ER 465.

[xiii] [2013] ECHR 28.