From the right of controlling their own image to their freedom of association

By Lígia Carvalho Abreu (2015)

Fashion images are used to promote the consumption of clothes but they also represent a complex of emotions, a language and a cultural message that comes alive with the model.  Thus, fashion images are objects of a symbolic relationship that is built in the minds of those who visualise them.

This symbolic relationship is the perception or the construction of reality, which includes: physical attributes, attitude, life style, freedom, social status, honour, glamour and name.

This is the power of models.  

Qui êtes-vous Polly Maggoo? Film directed by William Klein (1966) which reveals, through an artistic aesthetic and a satirical purpose, the construction of the image of model Polly Maggoo and her influence in society as part of the popular culture. Photo: Courtesy of Arte France Développement.  

 

Who is responsible for this power?

The photographer, the editor or fashion agents promote the image of the model.  In the context of their freedom of expression and artistic creation they are responsible for the development of the economic dimension of a model’s personal image.

However, as a fundamental right, it cannot only be understood as the power of each individual to explore their own image as a source of economic income. The right of image comprises a physical, ideal and moral element.  According to this theory, rightly explained by Adalberto Costa, the physical element of image is the physical existence of the human being, regarded as the object of the projection to his unique physiognomy. The ideal element is based on the evolution of personal image from birth to death and beyond it[i]. The moral element represents the essence of a person conscious of their own image, moral and physical characteristics, capable of deciding how their image will be used and how it will be perceived by others.

Thus, when supermodel Coco Rocha fights for her right to control her image in the cover of Elle Brazil magazine of May 2012 because of a photo-shoot where she was wearing a bodysuit under a blue sheer dress that was removed from her body by photoshop techniques against her previous expressed consent, she is simply exercising her legitimate power of controlling her own image which derives from her fundamental right of publicity (personality rights).

Like many painters, actors, photographers or designers, models have a vision of their work, of what they want or not want to do in order to define their career. Models, not being artists, lend their image to an artistic and commercial business. They also have the right to control their own image, without interfering with the photographer’s freedom of creation or with the freedom of press.[ii]

The Power of Fashion Models. Illustration made by Catarina Pinto and Lígia Carvalho Abreu.  Source of Inspiration: The model is wearing a dress designed by Marc Jacobs (spring 2013 RTW) and a hat by the British brand Daks (Winter 2014/2015 RTW). Background: Emilio Pucci 2015/2016 Fall RTW Collection. 

The model can thus control that space which is not the photographer’s or fashion editor’s domain of freedom. Under their right of freedom of expression and artistic creation, they can expose and not impose to the model their vision about the way her/his image will be photoshopped. The models can give, deny or revoke their consent for these digital manipulations in order to protect themselves from violations of their rights: their honour, related to their professional reputation, the freedom to use their own body or the right to protect private intimacy. These are intrinsic elements of the personal image.

However, the right of image entitles its holder to a domain over his/her personality strictly respecting the rights of others, such as freedom of expression, freedom of artistic creation and press freedom. In case of the collision of rights, the judge must apply the principles of human dignity as well as proportionality to restrict a legitimate right that cannot be fully and immediately satisfied due to the safeguard of a right that in a concrete case and according to the application of the above principles, is considered to be superior.

The Power of Fashion Models. Illustration made by Catarina Pinto and Lígia Carvalho Abreu. Source of Inspiration: The model is wearing a dress designed by Marc Jacobs (spring 2013 RTW) and a hat by the British brand Daks (Winter 2014/2015 RTW).  

 

Even if the right of protecting one’s image is inalienable, what happened to Coco Rocha shows that models can be in a vulnerable position due to the lack of consciousness of their rights. For instance, only in 2013 the New York State Senate and Assembly approved an amended legislation concerning child labour, in order to protect child models who live and work in New York as child performers. This change in labour law was driven by a petition and the work of The Model Alliance, a non-profit labour organisation for models working in the United States. This organisation is also responsible for the proposal of the Models’ Bill of Rights which states:

 

The minimum age for runway work at New York Fashion Week is 16 years-old; All jobs and casting involving full or partial nudity must be subject to informed, prior consent; No model under the age of 17 shall be asked to pose nude or semi-nude; Agents will maintain a professional relationship with models under contract and will endeavour to ensure that clients and photographers do the same; Models may review the agency’s chart of bookings and options upon request; Models shall be paid by the agency within a reasonable time after payment is received from the client; Models may refuse non-paying jobs and jobs that only pay in “Trade”; The agency will work with a model’s parent or guardian to formulate an education plan for models of high school age.[iii]

 

That is why the power of these models is also expressed in their freedom of association.

However, fashion models who are independent contractors are unable to become a member of trade unions under the law of certain countries. Only in 2009 the British Trade Union Equity accepted models as their members[iv].

New fashion weeks are emerging worldwide in countries that limit the fundamental freedom of association, by depriving them of the opportunity to become part of the changing process of labour law or limiting membership. In most of these countries with emerging fashion weeks, there are no organisations like The Model Alliance. Young models, some of them under the age of 17, travel to a foreign country and work illegally without a proper wage or not knowing exactly what kind of work they will be doing. This situation can endanger a model’s power.

 


 

I Adalberto Costa. Direito à Imagem. Revista da Ordem dos Advogados 4 (2012): 1345-1346.

II Lígia Carvalho Abreu. O Direito à Imagem como Matéria Fundamental do Direito da Moda. Revista Jurídica da Faculdade de Direito da ULP 4 (2014): 49.

III The Model Alliance. Models’ Bill of Rights. <http://modelalliance.org/models-bill-of-rights>

[iv] Equity. Equity’s Models’ Area.