Unauthorized Posting of Fashion Photographs not Protected by European Convention of Human Rights

A case that started a decade ago came to a final end on January 10 after the European Court of Human Rights in Strasbourg ruled that France did not violate the right to freedom of expression protected by the European Convention of Human Rights when its highest court ruled that the unauthorized publication on a web site of photographs taken during fashion shows was not protected by the European Convention of Human Rights.

The case is Ashby Donald v. France, and is available (only in French) here.

The applicants in this case were fashion photographers, who, in March 2003, had taken photographs of the Fall/Winter fashion shows in Paris which were posted on the ViewFinder site without the permission of the fashion houses. Clothes are protected by copyright in France, unlike in the US, as long as they are original, which was the case here.

First Amendment Protects Publication of Fashion Photography on a Web Site

The fashion houses had first sued ViewFinder, and had won in France. However, the Southern District of New York (SDNY) refused in 2005 to grant them the exequatur which would have made the French judgment enforceable in the US.

ViewFinder had argued inter alia that the French judgment’s compensatory remedies were unenforceable because enforcing the judgment would be inconsistent with the First Amendment.

The SDNY agreed that “[t]here [was] no question that Viewfinder’s activities [fell] within the purview of the First Amendment. That those activities do not involve the expression of political opinions does not defeat the relevance of the Amendment. The subject matter of protected expression extends beyond the political to include matters of cultural import.”

The French Rulings in the Case

The fashion houses later sued for copyright infringements the photographers as well, who won in the court of first instance, but lost in front of the Paris Court of Appeals, a ruling later confirmed by France’s highest civil and criminal court, the Cour de Cassation.

The photographers had claimed unsuccessfully in front of the Cour de Cassation that, by holding against them, the Court of Appeals had violated of article 10 of the European Convention on Human Rights which protects freedom of speech, and also article L. 122-5 9° of the French Intellectual Property Code, which, at the time, allowed an exception to the exclusive right of reproduction if for:

a “ reproduction or representation, in full or in part, [of] a work of graphic art, architectural or plastic, through print, broadcast or online, with the sole aim of immediate information and direct relationship with the latter, subject to clearly indicate the name of the author.”

However, the Cour de Cassation held that article L. 122-5 9° did not apply to the seasonal industry of fashion, an interpretation that the photographers argued was restrictive, when they took their case to the European Court of Human Rights.

The European Court of Human Rights refused to rule on this issue as it was an issue of how the Cour de Cassation had interpreted French law, and the Strasbourg Court’s role is limited to ensure compatibility with the European Convention of the effects of such an interpretation.

The January 10 Ruling of the European Court of Human Rights

The fashion photographers had argued in front of the Strasbourg Court that the French sentence was an unwarranted interference in their freedom of expression, as the fashion photographs are information and that, by disseminating them on a website, the photographers had exercised their freedom of expression, even if their purpose was commercial.

France: Fashion is Not a Debate of General Interest

The French government denied such interference, and argued that, even if there had been interference, it was legitimate as it aimed at protecting the rights of authors and was necessary in a democratic society. Indeed, article 10-2 of the European Convention of Human Rights states that exercising one’s freedom of expression may be subject to some restrictions or penalties prescribed by law if “necessary in a democratic society.”

France had also argued that the States signatory to the Convention have a greater margin of appreciation when restricting expression on a subject that is not a « debate of general interest, » such as, according to France, fashion. A surprising statement for a country known for its fashion industry!

Protecting Fashion by Copyright is a Legitimate Interference with Freedom of Expression

The Court noted that article 10 applies to communication via Internet regardless of the type of message that is conveyed and even when the objective of the communication is lucrative Therefore, publishing the photographs on a website dedicated to fashion fell within the exercise of the right to freedom of expression, and convicting applicants amounted to an interference with the Convention. As such, it was illegal, unless this interference was indeed « prescribed by law, » and was « necessary in a democratic society. »

According to the Court, interference was prescribed by French copyright law and France aimed at protecting the right of authors, the fashion houses which presented their collections of new models.

Such an intrusion was also necessary in a democratic society. According to the jurisprudence of the Strasbourg Court, the adjective « necessary, » within the meaning of Article 10 § 2, implies a « pressing social need. » Even though the States have a margin of appreciation in determining the existence of such a need, the European Court of Human Rights has the last word in determining whether a particular restriction is reconcilable with freedom of expression as protected by Article 10.

Even if the States have a wider margin of appreciation when regulating commercial freedom of expression, the Court takes into account that such expression may also be the way an individual participates in a debate of general interest. However, in this case, by putting fashion photographs online for the public to see, the applicants had not participated in a debate of general interest, and thus article France had not violated 10 of the European Convention of Human Rights.