Fashion shows today are much more than a few models on a catwalk. They include real stories and performances and entail very significant investments and therefore the participation of an excellent deal of contributors. Examples vary from Fendi’s iconic defile on the water of the Trevi Fountain in Rome or Louis Vuitton’s carousel in black feathers and laces or, lately, Gucci’s disruptive set of a hospital operating theatre, including models walking with sculptures of their own severed heads.

Fashion shows today are no longer the mere presentation of the designer’s latest creation; rather, they have become a cultural phenomenon—a means of expression of artistic, social, historical, and sometimes political values. For example, about Missoni, dressing models in pink caps as a logo against female discrimination, the echo of Queen Elizabeth’s first time sitting within the front row of a fashion show next to the legendary Vogue Editor-in-Chief Ann Wintour or Valentino Garavani’s three-day spectacular farewell to the catwalks in Rome to celebrate his 45-year-long relationship with the Eternal City, etc.

Yet, in Italy, no reported case has ever addressed how fashion shows might be legally protected. The issue isn’t irrelevant, given—on the one hand—the high investment made for the putting in of the show, which justifies protection against imitation as soon as the work is created, and—on the opposite hand—the possibility of reproducing fashion shows through audiovisual means and images, at a later stage. 

Some policy considerations against the copyright protection of fashion shows could be that they are ancillary to the sale of a product and therefore do not present a sufficient degree of originality. Yet, the final aim to trigger an economic advantage to the creator or its assignees shouldn’t be taken into consideration to prove copyright protection, as shown, for example, by the very fact that advertising creations are protectable in Italy as autonomous works of art. Thus, under Italian law, copyright should exist insofar because the concerned work is original, without taking into consideration its ultimate purpose. Further, originality merely requests that the work carries out an expression of the author’s personality, without entering into the merits of the creation.

The majority of contemporary fashion shows might present a sufficient degree of originality to access copyright protection within the Italian system, insofar as they convey together a mixture of scenic and technical solutions, music, costumes, and settings. Further, copyright protection is granted also to creations that may vary over time within the lines of a given plot. Unlike other legal systems, like that of us, fixation isn’t a requirement to access copyright under Italian law, which protects oral works or works that cannot be repeated.

On the one hand, and as an exception to the general rule, choreographic works request a certain degree of fixation of the main lines of the work, as provided by Article 2, paragraph 3 of the Law of 22 April 1941, No. 633 Italian Copyright Law (ICL). Such fixation is requested in writing or through audiovisual means and might be, in some cases, a potential obstacle for the assimilation of fashion shows to choreographic works.

Can Models Be Considered Performers?

Since both national and international law defines protected performances as people who are the interpretations of a copyrighted work, this could include the performance of a fashion show by runway models.

In this regard, Article 80 (1) of the ICL considers acting and performing artists to be “actors, singers, musicians, dancers, and other persons who perform, sing, act, recite, or in any way complete intellectual works, would this be guarded or of a public domain”. Similarly, Article 3(b) of the Rome Convention and Article 2(b) of the 1996 WIPO Performances and Phonograms Treaty provide protection to “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise participate in literary or artistic works”, mirroring the classification of copyrightable subject material provided by the Berne Convention for the Protection of Literary and Artistic Works. In addition, the Beijing Treaty on Audiovisual Performances of 2012, managing the property rights of performers in audiovisual performances, grants performers economic and moral rights with specific reference to unfixed (life) performances.

Article 9 of the Rome Convention, which specifies that “Any Contracting State may, by its domestic laws and regulations, extend the protection provided for in this Convention to artists who do not participate in literary or artistic works”, so implying that the existence of a copyrighted work underlying the performance is central to the definition of protected performers under Article 3(a).

Consequently, national laws may depart from the Rome Convention only to the extent that they supply a more generous standard of protection than that granted under the international agreement, but they cannot deny performance rights with regard to copyrighted works. Failure to do so would place signatory countries in breach of their international obligations. Therefore, as far as fashion shows are to be considered as protectable subject material in Italy, performers’ rights might be granted to models who “execute” the style show through a given number of movements in an assigned timing.

The Impact of New Technologies

One of the foremost interesting innovations, however, came within the mixed reality space. This time, it was not so much about capturing and replicating an experience to transport users, but, rather, creating an experience layered over the real world through holograms. This was used on a runway for the very first time by the legendary Alexander Mc Queen back in 2006 when a hologram version of Kate Moss modelled a dramatic organza gown. Holograms have recently appeared within the fashion shows of Diesel, Guess, and Ralph Lauren, creating optical illusions and making the connection between fashion and technology to a consecutive level.

The copyright protection of creations of Artificial Intelligence (AI) —which could also involve fashion shows going down in augmented reality and created by AI—is that, under Italian law, creative works must be original to urge copyright protection, and traditionally, the necessity of originality has been linked to the physical person of the author.

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