For his first ad campaign at the helm of Givenchy, Matthew Williams asked Kendall Jenner, Bella Hadid, Playboi Carti, Anok Yai, and Liam Powers to “style themselves,” with the creative director telling WWD that his “ethos is about the luxury of infusing clothes with your own personality, not being worn by them.” Hence, the subjects’ widely-reported self-styling of Givenchy’s Spring/Summer collection in the Heji Shin-lensed campaign, which aimed to elicit fashion editorials of the 1990s.
Having models-as-stylists appears to have been more a creative choice by Williams than a COVID-19 restriction. However, this comes as brands have had to get creative in recent months as a result of pandemic-imposed challenges. In an April editorial spread for Vogue Italia, for instance, supermodel Bella Hadid posed in front of a white wall and doorway in strappy DSquared2 sandals, a camouflage-meets-animal print jacket, and itty-bitty bikini briefs, with a single prop in hand – err mouth: a blue balloon. The magazine spread had – quite notably – been shot via FaceTime, as models, designers, stylists, photographers, makeup artists, and all of the various essential assistants were shut-in at home due to the pandemic.
Restrictions have eased since then, enabling individuals, such as Williams, to travel. WWD noted late last month that “Williams, who is American, was able to fly to New York to attend and supervise the shoot,” something that would have been virtually impossible several months ago. Either way, the new Givenchy campaign still does have something in common with that Vogue Italia spread and the sizable pool of similar editorials and campaigns that were shot via various technological advancements: an additional element of creativity on the part of the subject.
In much the same way as it could be argued that a model pressing the button to shoot a photo via FaceTime may have implications about the authorship and copyright ownership of the resulting photo, models styling themselves for photos could bring about similar issues.
As we noted back in April, in terms of copyright law, the exclusive rights in a work – including the right to reproduce, display, and sell a work, etc. – are bestowed upon the “author” of the creative work, as the Copyright Act states that a work is fixed in a tangible medium of expression, a prerequisite to copyright protection, “when it [is] embodied in a copy or phonorecord, by or under the authority of the author.” When it comes to photos, “author” is the photographer (at least initially). However, this well-established fact has given rise to some pushback in recent years, particularly as paparazzi-filed copyright infringement lawsuits have flood court dockets on both coasts of the U.S., with the question of authorship – and thus, ownership – has proven to be a compelling one.
As counsel for Hadid’s older sister (and fellow model) Gigi Hadid argued in one such suit filed against her, because “Ms. Hadid posed for the [paparazzi photographer] and thus, herself contributed many of the [creative] elements” in the photo, namely, her “pose, expression, [and] clothing,” she should be considered an “author” of the photo and have rights in it. (That case was ultimately dismissed after it was revealed that the plaintiff did not possess a copyright registration for the photo prior to filing suit).
More recently, model/actress Emily Ratajkowski raised the issue in a copyright infringement case that was filed against her after she posted a paparazzi photo of herself on her Instagram. In response to the complaint that photographer Robert O’Neil filed in a New York federal court in 2019, Ratajkowski argued, among other things, that the plaintiff’s photo lacks the “spark of creativity required to qualify for copyright protection.” In contrast, counsel for Ratajkowski argued this fall that O’Neil “merely took the photo when and where he happened to allegedly inadvertently cross paths with Ms. Ratajkowski, rather than choosing the timing or location or the photograph based on any sort of creative vision.”
More than that, O’Neil had no control over Ratajkowski’s “clothes, expression, pose, makeup, posture, position on the street, what she was holding, or who else was in the photo.”
The joint authorship argument is not entirely unheard of. It came up, to a certain extent, in Gillespie v. AST Sportswear when the U.S. District Court for the Southern District of New York held in 2001 that it would be possible for a jury to find that the subject of a photo is the “joint author of photographs where [he/she] contributed to ‘clothing’ and ‘poses’ of models.” Several years earlier, in 1992, the U.S. Court of Appeals for the Second Circuit held in the Rogers v. Koons case that “elements of originality in a photograph may include the posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved,” some of which could be contributed by the individual subject(s). And co-authorship issues were also raised and examined by the Ninth Circuit in Garcia v. Google.
Is There Shared Intent?
This all seems to weigh in favor of models-as-authors, save for one critical element. As Jeremy S. Goldman, a partner at Frankfurt Kurnit Klein & Selz PC, who focuses on intellectual property, told TFL this spring, “Joint authorship requires objective manifestations of a shared intent [between the parties] to be co-authors.” In other words, the photographer and the model must agree that they are collaborating in the capacity as joint creators.
Goldman is skeptical of whether such co-authorship intent is present when it comes to the FaceTime-centric, as he states, “If we are talking about a professional photographer, [it] seems very unlikely that he/she would intend to share authorship with the model.” The same can likely be said for self-styling scenarios, particularly instances like the Givenchy one, in which stylist Lotta Volkova is credited in more than one place as the official stylist of the campaign. And even then, it is not industry practice for copyright registrations to list both the photographer and all of the various other creatives, including stylists, involved.
Nonetheless, the issue seems to keep coming to the forefront in practice (largely due to COVID-imposed fixes) and in court.
Meanwhile, outside of the U.S., courts have considered the issue, with the Tokyo District Court, for instance, taking on a case several years ago that pitted two beauty publishers against one another over imagery. In All Beauty v. Coiffure de Paris Japon, All Beauty sued for copyright infringement, alleging that Coiffure de Paris Japon reproduced and published its images without authorization. In response, Coiffure de Paris Japon argued that All Beauty lacked the requisite rights to file suit, and instead, the hairdressers behind the styles depicted in the images were the rightful copyright owners.
At the very least, Coiffure de Paris Japon asserted that the hairdressers, which performed creative activities by way of the hairstyles in the photos, were co-authors of the “joint works,” along with the photographers.
Siding with All Beauty, the Tokyo District Court determined that the “originalities of the plaintiff’s photographs exist in a combination and arrangement of subject matters, angles of shots, light and shade, and backgrounds, etc., [and] so, the Court cannot find any intention for joint creation, which is required for [the photos to be considered] joint works.” Furthermore, YUASA and HARA attorney Kodai Kimura has since noted that “the Court pointed out that the defendant did not prove any intention to produce joint creations by the hairdressers and photographers in connection with the plaintiff’s photographs,” thereby, speaking to the same point that Goldman made.
According to Kimura, while the court denied the existence of joint authorship in that case, it might not be unfeasible for a court to rule the other way in the same situation “depending on the process of collaboration between the hairdressers and photographers.”
Practically speaking, though, it is probably an inconsequential issue in the cases of big design houses, such as Givenchy and its S/S ad campaign, since these luxury players likely have all rights in the resulting imagery assigned to them as a condition of the photographer’s – and various stylists’ – contracts. Having said that, it will be interesting to see how the court approaches the issue in the still-pending Ratajkowski case, where such assignments of rights are certainly not in play.