Paris Fashion Show Photos . . .
- FAIR USE OR NOT?
by Joel Hecker, Esq
A recent decision on the fair use issue offers an interesting
window into how a court analyzes a potential fair use defense. The
plaintiffs, in SARL Louis Feraud International v. Viewfinder, Inc.,
are French corporations which design and market high-fashion clothing.
Defendant Viewfinder and its two principals who are professional
photographers, operate an internet fashion magazine called FirstView.com.
Plaintiffs exhibit their new fashion clothing as part of yearly
fashion shows in Paris under the auspices of the French Federation
Viewfinder has a website on which it posts photographs of
the current season’s fashions. This may be viewed only by purchasing
a subscription. However, photographs of past collections are available
for free. It also sells photographs of runway shows to various other
publications, but does not sell clothing or designs. Plaintiffs,
on the other hand, sell clothing but not photographs.
Plaintiffs obtained a default judgment in a French court
and brought an action in the United States District Court in New
York to enforce it. The District Court initially dismissed the action,
finding that enforcing the French judgment would violate the First
Amendment protection available under the fair use doctrine.
That decision, however, was reversed on appeal and the case
sent back to see if there was sufficient evidence to determine whether
fair use applied, and if so, whether French law had an equivalent
protection to our fair use.
Plaintiffs thereafter moved for summary judgment on the belief that
fair use could not possible apply. The District Court analyzed the
fair use factors, as follows:
First Fair Use Factor. (The purpose and character of the
The transformative aspect of the use is clearly the most important
issue. The court defined this as primarily a use plainly different
from the original use for which the copyrighted work was created.
The court determined that, if sufficient evidence was presented,
a reasonable fact finder could find Viewfinder’s use to be highly
transformative since plaintiffs’ purpose was to design and market
fashion while defendant’s purpose was to provide the public with
news dispatches from the front lines of the fashion world.
The court further stated that defendant’s use, while undisputedly
commercial in nature, might have been mitigated by the fact that
it could have been serving broader public purposes, and that it
was not trying to profit by selling plaintiff’s images (it was selling
its own copyrighted images).
Finally, since the limited testimony
to date was that defendant’s accreditation was obtained by its clients
and not them, a bad faith allegation was not relevant.
Accordingly, the court was not able to determine on the facts
before it in whose favor this factor would go. However, it did
indicate a belief that Viewfinder’s position was strong and, assuming
there was additional evidence to support its position, that a reasonable
fact-finder could find the use transformative, that it did not amount
to commercial exploitation, and that defendant did not act in bad
Second Fair Use Factor. (The Nature of the Copyright Work)
The seasonal Paris fashion shows, although by invitation only, were
certainly not private. There were approximately 800 buyers, 2000
journalists, 400 photographers and other fashion professionals who
The court basically said that the First Amendment simply does not
permit plaintiffs to stage public events (even if under the guise
of “by invitation only”) in which the general public has a considerable
interest, and then control the way in which information about those
events is disseminated in the mass media.
Third Fair Use Factor. (The amount and substantiality
of the portion used)
There was no issue that defendant’s use of plaintiff’s work was
extensive. However, the ultimate determination under this factor,
according to the court, would depend upon whether the use was reasonable.(by
providing comprehensive coverage of the season’s fashion shows.)
If so, it could be found to be tranformative.
Fourth Fair Use Factor. (The effect of the use upon the potential
market for or value of the copyright work.)
Plaintiffs sold designs for clothing and defendants sold licensed
photographs. As a result the court concluded there would probably
be no negative impact on plaintiffs’ market unless plaintiffs were
able to demonstrate that they had, or had an interest in, marketing
photographs of their clothes.
Summary of Fair Use Factors
Taking all four of the factors together, the court was unable to
come to a conclusion, as a matter of law, that Viewfinder’s use
of photos of plaintiff’s clothes was not a fair use. However, assuming
the defendant could substantiate its factual assertions, the court
clearly was sending a message to plaintiffs that they were in trouble!
© Joel L. Hecker, 2009 Attorney Joel L. Hecker lectures
and writes extensively on issues of concern to the photography industry.
His office is located at Russo & Burke, 600 Third Ave, New York
NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com