Written by Sébastien Lachaussée
& Jonathan Guibert
For fashion shows, advertising, TV shows or events, it is usual to employ models. But to get a secured service, it is necessary to know the protective settlement of models. Here we go across the key points, you need to watch to hire models under french law.
Who is a model ?
Under article L. 7123-3 of the french labor law “is deemed to have a model job, even if this job is part-time, any person who : 1° either promote in public, directly or not by reproduction of its image on all visual or audiovisual devices, products, services or advertisements; 2° Or pose as model, with or without a later use of its image.”
The french administration specified on 20 december 2007 that “students or children employed to promote products or trademarks on the occasion of events” are models “whatever fame or age of the person and if it has this job occasionaly or as a permanent job, or if she has another main job”.
Performance artists and voice-over artists are excluded from the model regulation scope because it is not only an intent to capture or use the image of the person but a real performance. The french courts deemed that “the faceplay and the interplay with a partner” demonstrate the difference between a performance artist and a model (Conseil d’Etat n°167585,17 mars 1997; Cass. Soc. n°95-43.510, 10 février 1998). Yet, a later court decision ruled that it is necessary to have a real acting (Cour d’appel de Paris, 4ème ch. 21 janvier 2005).
Employed models or freelance models ?
According to the french administrations guidelines of 20 december 2007, “a model is not an independent contractor and is not paid on invoice”. Consequently, the freelance models situation would be illegal in accordance with the guidelines provisions.
Article L. 7123-3 of the french labor law states a presumption of employment for the models : “all contract in which all person pay to hire a model is presumed to be a labor contract”.
This presumption cannot be reversed by the sole proof that there is no hierarchy between model and employer (Article L.7123-4 of the french labor law). The classification of “labor contract” is automatic whatever the classification of the contract the parties agreed on, the method of payment and the amount of the remuneration.
The fact that models are submitted to the labor law and social insurance system is specific to french law. Models are not submitted to the social insurance system of french artists called “intermittence du spectacle”.
When models get employed by modeling agencies, it is a three-party relationship: a labor contract is signed between the model and the agency, and another contract of service is signed between the agency and the producer. This specific relationship is extremely regulated. Labor contracts must include some mandatory provisions along to those already imposed by the french labor law. If those provisions are not included it is possible for the model to get in court the requalification of the contract in an open ended labor contract (Cour d’appel de Paris, 10 novembre 1998). Although the labor contract of the model is signed by the model agency, the producer will be responsible for the execution of the contract in accordance with article L. 7123-18 of the french labor law.
The incomes of a model are divided between the incomes paid in counterpart of the service of modeling which is presumed to be a salary, and royalties paid in counterpart of the transfer of image rights and/or the exploitation of the recording of its image referring to the use of the image after the shooting days. The royalties do not depend on the salary, but depend on sales or the broadness of the use of the models image. Royalties are not salaries and have to be set on a separated agreement in accordance with article L. 7123-6 of the french labor law.
Under Article L.16-2 of the syndicates agreement on the bargaining of models, it is possible to set a global income for the use of image rights when “the user can’t determinate exactly final quantities in advance”.
So, the transfer of image rights on fotos for the benefit of an foto agency, a publisher or a communication agency not allow a third party to publish them without agreement of the model. But “law has never laid down the principle of a proportional fee for the image rights use of models” (Cass. 1re civ., 11 déc. 2008, no 07-19.494, D, rejet, CA Paris, 6 juin 2007).
The other rules regulating relationships between agencies and models in the syndicates agreement upon the bargaining of models are for instance information rights, medical lookup, legal working time restrictions, equality between french and foreign models, equality between men and women, children models protection, guaranteed minimum incomes.
The fashion industry and the media sector needs to be aware of this regulation in order to avoid that their contracts with models turn into open ended labor contracts before the french courts.