Fashion Innovation: Breaking Barriers Galerie Lafayette Plug and Play September 29, 2017 Paris, France Cabinet Bondard 62 rue de Maubeuge 75009 Paris Tel: +33 (0)6 19 41 31 52 Email: cb@bondard.fr
I. Re-SEE s questions Question 1 to ReSEE: Sofia, you launched a successful online marketplace. So you have dealt first hand with some of the issues commonly encountered by start-ups in getting an online platform up and running. Can you share with us some of the legal roadblocks that you have encountered that have been particularly challenging, and if applicable, some of the ways your industry has addressed them? Re-SEE s answers: 1. Trademark / How far do you go when you are a young company? When you are just getting off the ground and have limited resources, how far do you go in protecting your name? Logo? In what territories? 2. Use of Photographs: protection of images created by Re-SEE, use of outside images on the site (i.e. runway images), the rights of models. 3. The use of applications like Swipecast to book models. Now from a legal perspective:
1. Trademarks: what, when, where? When should I protect my verbal trademark? Should I protect my trademark with the logo on it? Should I protect it in my go to market country, or more? How much do I need to spend?
2. Rights on images of a fashion show (1) The model, The fashion house (brand + fashion show designer), The photographer, The space welcoming the event,
2. Rights on images of a fashion show (2) Rights on fashion shows Fashion shows have evolved and become more original. They are now choreographed, to the point where copyrights are applicable. In 2008, French case law granted a fashion show the status of a protectable piece of art (Cass. crim., 5 févr. 2008, n 07-81.387) Therefore, fashion houses own IP rights to such shows, with the reservation that rights may be shared with other contributors (collective / collaborative works)
2. Rights on images of a fashion show (3) Rights of photographers Exception of news reporting (L.122-5-9 of French Intellectual Property Code) : the author can not prohibit the reproduction or representation, integral or partial, of a work of graphic, plastic or architectural art, by means of a print, audiovisual or online media for a purpose exclusive right to immediate information in direct contact with the latter, provided that the name of the author is clearly indicated But this exception of information must be interpreted strictly (goal of immediate information) and concerns only works of graphic, plastic or architectural art. Therefore, French case-law consider that the fashion show did not fall within the scope of this exception (Cass. crim., 5 févr. 2008, n 07-81.387)
2. Rights on images of a fashion show (4) In this specific case, the dissemination of photographs was made a few hours after the fashion show, and the condemned photographers were accredited by the fashion house itself to photograph the fashion show. The condemned photographers petitioned the European Court of Human Rights (CEDH) which ruled in a judgment of 10 January 2013 that their conviction for infringement did not violate their freedom of expression. A solution for photographers might be to include in the accreditation the appropriate authorizations.
2. Rights on images of a fashion show (5) Rights of public spaces Fashion shows on the public highway / public spaces : french jurisprudential exception of the «theory of accessory» (Cass. Civ. 1, 4 juillet 1995 n 93-10.1995) Principle that the exploitation, including commercial exploitation by third parties, of works placed on the public highway can not be regarded as a presentation of the work to the public requiring the authorization of the architect or the author, since this presentation is only incidental to the subject (Cass. Civ. 15 mars 2005 n 03-14.820)
2. Rights on images of a fashion show (6) French Law of 7 July 2016, introduced a new obligation for people wishing to use for commercial purposes images that constitute national domains (ex: Château de Versailles) From now on, these uses will in any case be subject, with exceptions, «to the prior authorization of the manager of the concerned party of the national domain.» (L.621-42 paragraph 1 of the French Heritage Code)
3. Models Models have a special status defined by article L.7123-2 of the French Labor Code : Any person who is responsible for: either directly or indirectly presenting to the public by reproduction of his or her image on any visual or audiovisual medium, is regarded as a modeling activity, even if this activity is carried out only on an occasional basis, a product, service or advertisement; or to pose as a model, with or without subsequent use of its image Any paid modeling contract is presumed to be an employment contract (L.7123-3 of the French Labor Code) The courts had the opportunity to consider that a model could be considered as a performer in the case of an advertising film : stage play involving a personal interpretation (Cass. Soc. 10 février 1998, Bull. V, n 82 ; Cour d appel de Paris, Pôle 5, Chambre 2, 16 octobre 2009 n RG : 09/14550)
II. Clausette s questions Question 3 for Clausette: Noémie, you are at the forefront of what is happening in Fashion Tech and tackle these issues on your well known fashion tech blog Clausette.cc. Can you share with us maybe two trends or products that you see recurring in the fashion tech field, and how do you think this will impact the fashion industry? Clausette s answers: 1. Smartfabrics / wearable technology, 2. Blockchain, 3. Artificial Intelligence, Now from a legal perspective:
1. Blockchain and its many open legal questions: Security and enforcement of legal transactions : in the absence of certification from a trusted third party, what is the legal value of transactions on blockchain? Intellectual Property and personal data : what protection of the intellectual property rights to the blockchain and to the personal data present in this technology? Responsibility : in the absence of a trusted third party, who is responsible? Governance: who governs the blockchain? What rules are applicable?
2. Wearable technology Privacy / data considerations, Patents, Copyrights, Trademarks, Health law considerations, Employer/employee relationship
3. Artificial intelligence Deep learning to analyze people s taste and predict trends (Heuritech / Amazon Echo look / Zara uses big data ) Software and data can be generated «automatically» by existing software, designed by developers. Only a natural person may be the author : what about works created by software? The Monkey Case: in a famous case in the United States, the judges of a California court refused to recognize copyright to an ape who had himself taken «selfies» (Northern District of California, Naruto V. Slater, 28.01.2016)
Céline Bondard Cabinet Bondard 62 rue de Maubeuge 75009 Paris Tel: +33 (0)6 19 41 31 52 Email: cb@bondard.fr www.bondard.fr