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.

Photographs Uploaded on Social Media Sites Protected By Copyright

Social media sites allow their users to easily upload images online, and using a digital photograph posted on a social media site can be done by a few clicks. However, an image posted on a social media site is more likely than not protected by copyright, and thus cannot be reproduced without permission of the copyright owner.

Here is a recent interesting case on the topic.

Daniel Morel, a professional photographer, was in the city of Port au Prince in Haiti on January 12, 2010, the day of the earthquake. He took numerous photographs of the disaster, and was able to post them the same day from his Twitter account, using Twitpic, one of Twitter’s third-party applications. Twitpic’s Terms of Use provided then, and still do, that users give Twitpic permission to use or distribute their photos on Twitpic.com or on affiliated sites, but that the owners of the uploaded images retained their copyright.

Not long after the images were posted, they were allegedly reposted to the Twitter account of Lisandro Suero, who allegedly tweeted that he took these photographs and that they were available for licensing. The Agence France Presse (AFP) then used them and also transmitted them to Getty, which holds the exclusive rights to market AFP’s images in North America. The photographs were subsequently licensed to several newspapers and networks.

The AFP sought a declaratory judgment that it did not infringe Daniel Morel’s copyrights in these photographs. Morel counterclaimed alleging, inter alia, copyright violation. Morel brought similar third-party claims against Getty.

The AFP and Getty filed a motion to dismiss Morel’s counterclaim, which was denied in part in January 2011 by the Southern District of New York, (Agence Fr. Presse v. Morel, 769 F. Supp. 2d 295, (S.D.N.Y. 2011).

Judge Alison J. Nathan of the Southern District of New York (SDNY) ruled last week that the AFP and other news organizations did not have the right to use these photographs without Morel’s permission.

License or Not?

A license is an affirmative defense to a copyright claim, and the AFP was arguing that when Morel posted his photos on Twitter through TwitPic, he subjected them to the terms of service governing content posted to these two websites, and that these terms of service provided the AFP with a license.

The Twitpic login page warned users that it operated under Twitter’s Terms of Service, which provided that users grant Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute…[content uploaded on the site] in any and all media or distribution methods.” Judge Pauley from the SDNY had concluded in 2011 that the express language of the Twitter and TwitPic TOS did not provide an express license that covered AFP.

Judge Nathan noted last week that the AFP “wholly ignore[d] those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that “[y]ou retain your rights to any Content you submit, post or display” and “what’s yours is yours – you own your content,””and noting that “[t]hese statements would have no meaning if the Twitter TOS allowed third parties to remove the content from Twitter and license it to others without the consent of the copyright holder.” She also reasoned that, because Twitter’s Guidelines state several times that content should not be disassociated from the Tweets in which they occur, AFP’s removal from Twitter and the commercial licensing of Morel’s photos-“is not akin to the rebroadcast of a Tweet.”

RT and Copyright

The AFP had argued that either its conduct had been licensed under the TOS, or that “the uncountable number of daily ‘re-tweets’ on Twitter and in the media where Twitter/TwitPic posts are copied, reprinted, quoted, and rebroadcast by third parties, all could constitute copyright infringements.” Judge Nathan was not convinced by this argument, calling it a “false dichotomy” and stating that “a license for one use does not equate to a license for all uses” and she concluded that the AFP was not entitled to summary judgment on the license issue.

Authors do not lose their intellectual property rights when uploading their works on social media sites.

Agence France Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730.