European Court of Human Rights Issues Fascinating Decision of First Impression Involving Rights of Photographers at French Fashion ShowsFebruary 21, 2013 – The New York State Bar Association EASL Blog
A fascinating and unusual decision of first impression (published only in French) from the European Court of Human Rights (ECHR) involves the rights of photographers to use photographs taken at French fashion shows. Under French law, the fashion houses own the copyrights to any photos taken at a show. In the case, Ashby Donald and others v. France [ECtHR (5th section), 10 January 2013], the Court clarified for the first time that a copyright infringement conviction based on illegally reproducing or publicly communicating copyright protected material can be deemed an interference with the rights of freedom of expression and information under Article 10 of the European Convention.
The petitioners were three fashion photographers (one being an American), two of whom republished on their own fashion website for their own purposes photos taken by one of the other plaintiffs at fashion shows without permission of the fashion houses. They were ordered by a Paris court to pay fines and damages to a clothing designer and five fashion houses, totaling €255,000. After losing an appeal to the French Supreme Court, the photographers appealed to the ECHR.
Article 10 provides for an EU right to freedom of expression, that "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society..." en.wikipedia.org/wiki/Article_10_of_the_European_Convention_on_Human_Rights. French copyright law has an exception "allowing the reproduction, representation or public communication of works exclusively for news reporting and information purposes." echrblog.blogspot.com/2013/01/copyright-vs-freedom-of-expression.html.
The ECHR found for the first time that national copyright laws may have to yield in proper circumstances to this EU law of freedom of expression (similar to the First Amendment in the context of a fair use debate), but noting that "[t]he Court hereby confirms its approach that while freedom of expression is subject to exceptions, these exceptions must be construed strictly, and the need for any restrictions must be established convincingly." Id.
However, based on the facts of this case, the ECHR held there was no violation of Article 10 because the use of the photos was "not related to an issue of general interest for society and concerned rather a kind of 'commercial speech.'" Id. It also emphasized that national laws are entitled to wide deference. In addition, the ECHR found the fines and substantial damages award not to be disproportionate to the legitimate goals of the French copyright law, noting that the petitioners presented no evidence that the monetary awards had "financially strangled" them. Id.
So we are not alone in the U.S. in struggling with finding the right balance between copyright protection and freedom of expression in a modern Internet age.
If you read French, you may access the opinion at: hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115845
An excellent blog by a German professor that interprets and translates parts of the opinion is available at: echrblog.blogspot.com/2013/01/copyright-vs-freedom-of-expression.html. Of interest is the professor's note that "the Court's judgment is a clear illustration of the difference between, on the one hand, expression and content contributing to an issue of public debate or a debate of general interest for society, and on the other hand, 'commercial speech'. Speech, messages, pictures and content which are merely money driven do not enjoy the added value of the protection guaranteed by Article 10 of the Convention."