Of catwalks and copyright - Emma Portelli Bonnici

Of catwalks and copyright - Emma Portelli Bonnici

Runway modelling could potentially be considered a performance by other persons who perform interpretations of artistic works. Photo: AFP

Runway modelling could potentially be considered a performance by other persons who perform interpretations of artistic works. Photo: AFP

Catwalks, for the less fashion-savvy among us, are platforms extending into an auditorium or hall wherein fashion houses generally display their wares for the current season at any of the major fashion shows around the world. So, what’s the correlation between the two? 

Copyrights form part of a group of rights collectively referred to as intellectual property rights. Intellectual property rights or IPRs, generally include trademarks, copyrights and patents. These rights all relate to the ownership of a right over an often-intangible asset. 

Copyright can be said to be divided into authors’ rights and neighbouring rights. Authors’ rights are the economic rights to the work, as well as the moral rights of the author. These are the rights we most commonly hear about, such as the copyright attached to the author and singer (‘singer/songwriter’) of a piece of music, for example. Performers’ rights would fall within the category of neighbouring rights, thereby not belonging to the original singer/songwriter of the music as such but belonging to the person who played a part in performing the musical piece.

The idea of performers’ rights in Malta – rights falling squarely within the ambit of copyright under Maltese law – is not new. Although often taken for granted or entirely overlooked, performers’ rights are those rights pertaining to the actual participants in the performance who ‘performing’ has bestowed upon them a right in itself. This right is separate to the right to use a video or performance. Through an extension of the aforementioned analogy relating to singers/songwriters, if the song were performed on a stage with dancers, would these dancers also be entitled to performers’ rights? 

In the ECHR case of Ashby Donald and Others v France (2013), copyright protection was secured to prevent the unauthorised distribution of photographs that contained imagery of the runways in various fashion shows. The protection of the imagery found in the Ashby case could stem from the fact that fashion shows have become grander, a performance in its own right, rather than a mere showcase of couture. For example, if one were to analyse shows of the past decade or so, including even the most recent SS19 shows, it would become increasingly apparent that the notion of a simple runway show is no longer the norm. These shows have taken on a new status, transforming into massive arrangements with incredible staging, taking on a whole new persona. 

One such example of a show becoming so much more than a traditional runway was back in 2014, when Chanel, under Karl Lagerfeld’s direction, presented their autumn ready-to-wear collection in a mocked-up Chanel megastore-esque setting. The ‘store’ saw Chanel branded cotton buds, chainsaws and crisps as their wares, with models snaked through the ‘supermarket’ aisles at the wonder of everyone present. Always at the forefront of the innovative, the extraordinary and the bizarre, Chanel launched its cruise collection at the Gran Palais, by transforming this magnificent interior into a massive ocean liner, complete with a gargantuan vessel named La Pausa after house founder Coco Chanel’s villa in Southern France.

Taking the argument made in Ashby v France, coupled with this knowledge that fashion shows have practically become a performance in their own right, the logical draw would be that fashion shows could be eligible for copyright protection under national laws. 

The notion of a simple runway show is no longer the norm

‘Performers’ within the Maltese Copyright Act are defined as “singers, musicians, dancers, actors or other artists who sing, deliver, declaim, play in, act in, interpret or otherwise perform literary, musical and artistic works or expression of folklore and includes also singers, musicians, actors or other artists who sing, play in or perform in variety, circus and folklore shows or exhibitions.” 

This captures these third parties (such as dancers or musicians involved in the performance) within the definition, and hence, attaches performers’ rights thereto, consequentially requiring that they be compensated and paid royalties for the use of their work (just like a singer/songwriter is compensated when their song is used in a film, for example). 

Having clarified that performers’ rights are catered for under Maltese law, it would then follow that one must determine whether runway models could be considered ‘performers’ within the definition of a ‘performance’ under the Copyright Act. A ‘performance’ is defined as being “the direct rendition of the work to a public which takes place under such circumstances that the works performed can be perceived by the public without any intermediate communication.” 

These definitions coupled with the inclusion of “works of artistic craftsmanship” (which could easily be interpreted to include couture) as part of the definition of “artistic work” held within article 2(1) of the same Act would lead one to believe that fashion shows, and subsequently their performers (models), would be entitled to copyright under Maltese law. The wide interpretation of what constitutes an “artistic work” under our law had also been taken into consideration in the case of General Soft Drinks Co Ltd v Portanier Bros Ltd, where the court quoted Michael F. Flit in saying that “the fact that the work is an advertisement, does not detract from its right to protection, under the copyright act…”

Furthermore, Malta’s accession to the WIPO Performances and Phonograms Treaty (WPPT) in 2010, also bolsters this line of thought through article 2(a) of the WPPT which reiterates the Maltese definition of performers, stating that they 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”. 

Runway modelling could potentially be considered a performance by other persons who perform interpretations of artistic works, and hence, be protected performers falling within the parameters of the law. In the aforementioned example, the persons would be the models, the performance would be the catwalk and the interpretations of artistic works would be the fashion shows. 

Even if a case could be made under Maltese law for the acknowledgement and subsequent awarding of performance rights where they are due, it’s unlikely that performers’ rights would be monetised. They could possibly be used as an additional bargaining chip when negotiating contracts, or, at the very least, encourage a higher level of appreciation and respect for the models we see walking down runways around the world. Either way, the knowledge that these rights may exist, opens the floor to an interesting discussion on copyright. 

Even if, like the majority of us, you’re not in fact a catwalk model, there are a number of different situations in which performers’ rights could be due to you. 

Emma Portelli Bonnici is a Junior Associate at Fenech & Fenech Advocates. This article is not intended to offer professional advice and readers should not act upon the matters referred to in it without seeking specific advice.

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