Paris Fashion Show Photos . . .


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 Plaintiffs exhibit their new fashion clothing as part of yearly fashion shows in Paris under the auspices of the French Federation of Fashion.

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 use)

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 faith.

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 attend.

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