The Work of Models through a Fundamental Rights’ Perspective

viernes, septiembre 04, 2015


Lígia Carvalho Abreu [i]
Backstage of Moda Lisboa (Lisbon Fashion Week). Photo by Arlindo Camacho. Courtesy of Moda Lisboa
Can law solve a model’s concerns?
At some point in their career models face some type of pressure: to fit into the tiny clothes of a famous designer, to lose weight so as to fulfill the demands of the modelling agency, to be chosen for castings, photo-shoots or runways shows, to pose naked against their will; all this if they want to keep the job. Young models, especially underage models do not know how to deal with rejection, pressure, moral or sexual harassment and discrimination. Most of the models working in New York, Paris or Milan are foreigners. Some of them come from poor backgrounds. They often send money back home to their families, and at times they are the primary breadwinner. They need the job. They do not have the guts nor feel that they are in a position of making demands.
Those situations of pressure can lead to addictions or health problems such as:  anxiety, depression, anorexia, bulimia, alcohol and drug abuse.
The following statements are from Kate Moss and Cara Delevingne, both models from different generations. They represent some situations of pressure lived by young models.  In 2012, Kate Moss was questioned by Vanity Fair about her career, to which Moss replied: “I see a 16-year-old now, and to ask her to take her clothes off would feel really weird. But they were like: ‘If you don’t do it, then we’re not going to book you again.’ So I’d lock myself in the toilet and cry and then come out and do it. I never felt very comfortable about it.”[ii]
Cara Delevingne and Kate Moss Photo by Mario Testino for Burberry Prorsum 
In August, Cara Delevingne told London’s magazine The Times that: “I am not doing fashion work anymore, after having, like psoriasis and all that stuff (…). Modelling just made me feel a bit hollow after a while. It didn’t make me grow at all as a human being. And I kind forgot how young I was …I felt so old. I was, like, fight and flight for months. Just constantly on the edge. (…) You start when you are really young and you get subjected to …not great stuff. As time went on, I got to say no to things I couldn’t say no to before. But, especially when I was younger you feel like if don’t go along with what people say, then you will fail, you won’t get a job.”[iii]  
Apparently, Cara Delevingne has not dropped out of fashion for now.  She was recently chosen to be the face of YSL Rouge Pur Couture while Kate Moss continues to be one of the most successful models of her generation. However, memories of not so good moments remain.
To be a model is just a job, like every other. There are girls and boys, men and women who are happy in their jobs and are surrounded by wonderful people and there are others who do not have that luck.
Try to imagine working every day in constant pressure, in some sort of institutionalised dictatorship or having to deal with situations of moral harassment.  Even if you are a mature and emotionally strong person of 30, 40 or 50 years old, you would soon break down. All of this can be much more dangerous when experienced by young girls and boys.
No one becomes a supermodel overnight. A successful career as a model depends on how his/her image is constructed and this is a task for a number of people: a famous photographer, a strong modelling agency, a fashion editor and hundreds and hundreds of photos on Instagram and Facebook.
Even if a girl or boy is beautiful, she or he must compete with others. Beauty is a subjective thing. So, ‘You are Beautiful but You must be the Best’ to get the beauty contract, the cover of a magazine so that everyone can gain from it: the model, the modelling agency, the photographer, the magazine, the designer and the brand.
The modelling world, viewed from this realistic perspective is not far from top-level sports or music. The type of pressure faced by some young models is somehow similar to the pressure faced by young athletes in top-level sports or by young musicians.
Movie Poster from the film Whiplash, a 2014 American movie directed by Damien Chazelle based on his experiences in the Princeton High School Studio Band. The film depicts the relationship between a jazz music student, interpreted by Miles Teller and his abusive instructor, interpreted by J.K. Simmons. Image: Cold Open, Los Angeles graphic design.   

Other major concerns within the modelling world are: the network of human trafficking disguised within some modelling agencies and scouts; misleading casting calls; invasive backstage photography, in some cases pictures taken of models when they are changing behind the runway shows end up on pornographic websites; non-consented photoshop in photos; discrimination related to colour and race; underage models who travel to a foreign country and work illegally without a proper wage or knowing exactly what kind of work they are going to do, underage models that go to castings and jobs without a chaperone or are forced to drop out of school because they have to pay back the expenses supported by the modeling agency (living expenses, plane tickets, visa credits, among others). All this can take a toll if the model lives in an expensive city such as London or New York and only books a job for 3 or more months after being discovered by a scout.  
When we are thinking about all these concerns we are seeing the model as a human being and consequently we evoke some of the most basic human/fundamental rights which appear in: the Universal Declaration of Human Rights, the European Convention on Human Rights, the Declaration of the Rights of the Child, the Convention on the Rights of the Child, the European Social Charter or in several Constitutions, just to mention a few. 
Those rights are: the right to physical and psychological integrity, the right to health, prohibition of discrimination, the right to education, the right to be a child, prohibition of a human being’s exploitation or the right for each person to control the use of his or her own image.
The affirmation of those rights is important to the personal development of the model which is inherent to his/her human dignity. But what you see is that pressure is incessant because sometimes fashion business does not understand and respect the personal development of each model (whether it is physical or psychological). They do not see the model as a human being nor do they see them as a child.
How are countries, in this context, implementing the obligations related to human/fundamental rights? Is the national legislation really effective to protecting models? 
When you look at the national legislation applied specifically to models we see that, within the last years, the major concerns of the legislator have been: the weight and age of models.
By invoking the protection of public health and namely the health of young people, France and Israel, for instance, have adopted a legislation to limit the access of work to models that have a BMI below a certain limit: 18 in France, 18.5 in Israel.
In Italy, Spain and Denmark there are codes of conduct to limit the access of work to models that have a BMI of less than 18.5 and those who are under 16 years old cannot work at Milan Fashion Week.
In turn, the Danish Code Conduct does not impose a BMI limit but in modeling agencies which are committed to the Danish Fashion Ethical Charter there is an annual compulsory health check for all their models who are under the age of 25. There is also an age limit of 16 for all models who work alone.
In Portugal there is no BMI limit imposed by law on models. However, when France decided to pass a law about this subject, there was some discussion about this. Should the State rule these questions? Should they interfere with the individual freedom of each model? Should they interfere with the principle of autonomy of a private enterprise, in this case the autonomy of the modelling agencies? How far can a State go when legislation interferes with other legitimate rights? Are those laws really protecting models? If a model has a health problem, such as anorexia should it not be preferable to give him or her paid sick leave, and once recovered, they could return to their job, instead of limiting their access of work as a model?
In order to justify the BMI limit imposed on Cibeles Madrid Fashion Week, the Madrid’s regional government said that the fashion industry has a responsibility to portray healthy body images. For the regional official Concha Guerra: “Fashion is a mirror and many teenagers imitate what they see on the catwalk”. [iv]
If the reason behind the BMI limit is to protect health, shouldn’t the State also establish a weight limit on “plus size models”? According to medical standards there are “plus size models” who are healthy and others who are not. Those images of unhealthy “plus size models” can be as dangerous to the minds of young girls as those that are unhealthily skinny. Obesity, anorexia and bulimia are all health problems. There are more people dying in the world from obesity and its associated problems than from anorexia.[v]
Personally, I think that the perfect body is a healthy body (in shape and well proportioned) and this type of body can be found on slim models, plus size models and the inbetweenies[vi]. Thus, let’s forget about labelling models as plus size, slim, skinny or inbetweenie. It is important to respect each body, each size. 
The French law and the Israeli law could interdict access of work to models that are healthy in spite of having a BMI below 18.5 or 18, just because their body is like that. For instance, Israeli model Adi Neumann has said that she “would fail to qualify for jobs under Israeli legislation because she has a BMI of 18.3, even though she eats well and exercises”[vii].
I think to solve this problem the best solution is not to impose a BMI limit but to oblige modelling agencies to do and make proof of regular medical exams on their models as well as incorporate health insurance. Those who are not in a physical and mental health condition should be accompanied and sent to a doctor and once recovered, they could return to work. In this case it’s extremely important for a model to have health insurance and be entitled by law to have paid sick leave.   
To monitor a model is to know the model. Knowing the model is to see him or her as a human being with his or her unique characteristics (age/body) as well as their personal development. It is to have more human commitment towards the model.  This is an urgent need within the fashion business.
A model’s state of physical or mental health should be looked at to permit or interdict the access to work, not the BMI or size.          
Nevertheless, although I agree that all types of healthy bodies should be represented on the catwalk and campaigns, we must not forget that private autonomy is a fundamental principle of law. Thus, based on this principle a fashion designer, a brand or a modelling agency has a legitimate right in deciding to hire or not hire a model. Rejection is and will always be an option of the hiring process, as long as it is not motivated by discrimination on any ground such as race, colour, gender, religion, politics or other opinions based on social or national origin.   
The same principle of private autonomy can also legitimate modelling agencies and fashion brands so as to hire boys and girls who are under 18 years old. National legislations permit those girls and boys to work as models. However, in order to guarantee the safety, health and education of a child, his or her work is only permitted under certain circumstances. National labour legislations establish limits of duration of work for models under the age of 18 and other requirements to safeguard the safety, health and education of those models.
Most of the underage models start to work when they are between 14 and 16 years old. For instance, the Portuguese labour law, applied to the involvement of children in show business or other cultural, artistic or advertising activities, particularly as actors, dancers, public figures, musicians and models, states that: from the age of 12 to under 16, they can work four hours a day, twelve hours a week, with such limits being exceeded up to three hours if the activity increases during the day without any school activities. The minor can only carry out the activity between 8am-8pm or if they are 7 years old or older, they can participate in cultural or artistic performances between 8am and 12am. Those activities should not coincide with their school hours or interfere with their school activities. 
According to several national legislations, the work of an underage model must be subject to authorization. The New York labour law states that before they begin work, child models must have a Child Performer Permit, issued by the Department of Labour, valid for 1 year, and, in addition, the modelling agency needs to have a Certificate of Eligibility, valid for 3 years, in order to be able to hire an underage model. In Portugal the promoting entity (the modelling agency or the entity which organises the runway show or the photo shoot) must require an authorisation from the Commission for the Protection of Children and Young People (CPCJ) in order to hire underage models. If it is a single participation on a runway show or photo shoot, which occurs within a period of 24 hours with a child who is at least 13 years old and did not work as a model 180 days before the event, the promoting entity only needs to communicate the participation of the child to the CPCJ. 
According to both Portuguese and New York labour law, an entity requesting authorisation or permit must provide evidence that the child model is attending school and maintaining satisfactory academic performance. Proof from a medical professional is also needed, attesting that the child is fit to work, has no eating disorder and that he or she can model without harming their health. According to a general provision of the Portuguese labour law applied to underage workers, the employer must get the minor to carry out initial health checks before the start of their work or up to 15 days after in case of urgent admission, with the consent of the child’s legal representatives, including periodic or annual health checks.
The New York labour law imposes that a responsible person, designated by the parent or guardian, be at work with the child model if he or she is under the age of 16. In Portuguese law the promoting entity needs to provide information in the application for underage work authorisation about the person available to monitor the child’s participation.
 According to the New York labour law, a child model’s parent or legal guardian must provide trust account information when requiring a child performer permit. A parent or guardian must set up a trust account for a child model and an employer must assure that at least 15% of the child model’s earnings are put into that trust account.  This law will prevent parents from taking advantage of their child’s work. The Portuguese labour law has no disposition about a trust account.
The Portuguese CPCJ and the New York Department of Labour should only authorise the participation of children as models if the activity, the type of participation and the corresponding number of hours per day and per week respect the legal requirements, provided the participation does not jeopardize the child’s safety, health, physical, mental or moral development as well as their education and training. The permits or authorisation can be revoked or suspended if the legal requirements are not accomplished.  
In spite of the improvements in some national legislations to protect underage models, there is a question that is a recurrent theme in our society: Should underage models be used to “sell clothes” to adults? This debate was recently rekindled when Raf Simons chose 14-year-old model, Sofia Mechetner, to open the Dior 2015/2016 Fall -Winter Haute Couture runway show in a white slightly transparent night gown.
Dior 2015/2016 Fall Winter Haute Couture. Photo: Dior 
Fashion retailers or fashion couture houses have the same purpose: to sell, to make profit. However, in some cases behind a fashion show and behind the conception of a collection there is an artistic vision that the fashion designer wants to express. In order to represent this artistic vision, a specific type of model is essential, one that according to the designer can better convey his vision. A model becomes, thus, part of an artistic conception and process.       
For Dior’s 2015/2016 Fall Winter Haute Couture Collection, Raf Simons wanted to give continuity to Dior’s fairy tale through his new garden of femme fleurs:  a world of contrasts between innocence and experience, simplicity and luxury, virtue and sin. In this particular case, Dior is showing an ideal of beauty within the context of artistic purpose and therefore this should not be mistaken as the representation of the ideal beauty of the XXI century. The consumer, the reader, the fashionista and the models themselves must understand that.  In this context, mass media have a responsibility of not transforming a child into a beauty icon for adults. This is not “reality”, this is Art! As should be the message.
In addition, as long as all the child model’s fundamental rights are respected, including the child’s monitoring by his/her parents or by a reliable chaperone, and as long as the underage model does age-appropriate photos, it is not harmful for the child to do some modelling work. According to a Dior spokesman, Sofia Mechetner was chaperoned at all times and returned to her homeland (Israel) to attend school. 
However, in the fashion world it is not always easy to see an agreement about what is appropriate or not for an underage model to do. That is the reason why fashion councils, such as the Council of Fashion Designers in America or the British Fashion Council, and many other organisations around the world are imposing an age limit to models. Generally, they must be at least 16 to be able to be at runway shows in order to present clothes for adults.
Although labour laws provide dispositions to protect models, labour law is not conceived to take into account all the particular aspects of modeling work such as the modelling agency’s need for transparent accounting practices. Moreover, some public entities are not able to track down all type of abuse. For example, moral or sexual harassment as well as discrimination are often difficult to prove.
Thus, it is important to create more non-profit labour organisations, such as The Model Alliance[viii] and campaigns such as the Balance Diversity Campaign[ix] to give a voice to models. The efforts of The Model Alliance have propelled changes in New York labour law in order to protect child models that live and work in New York with the same rights as child performers. This non-profit labour organisation is also responsible for the proposal of the Models’ Bill of Rights so as to protect models from opaque accounting practises from some modelling agencies, to protect the privacy of models, to prevent any violation of their rights of image and to improve the respect of rights for underage models. In turn, the Balance Diversity Campaign, led by former model Bethann Hardison, has achieved in having the support and commitment from major brands (Prada, Dior, Rodarte, Proenza Schouler, just to mention a few) against race and colour discrimination.                 
Prada is one of the major brands committed to the Balance Diversity Campaign. Photo:  Prada Pre-fall 2015-2016 photographed by Steven Meisel.  


[i] This article is based on the presentation of the author “The Work of Models through a Human Rights’ Perspective” at the First International Online Congress of Fashion Law (August 2015) organised by the Fashion Law Institute Argentina. 
[ii]Jessica Diehl. The Riddle of Kate Moss. Vanity Fair, December 2012:  http://www.vanityfair.com/hollywood/2012/12/kate-moss-naked-emotions
[iii]Shane Watson. Cara and the truth about sex harassment in the fashion industry. The Times Magazine, August 16 2015: http://www.thetimes.co.uk/tto/magazine/article4523875.ece
[iv]CNN. Skinny Models banned from catwalk. September 13, 2006: http://edition.cnn.com/2006/WORLD/europe/09/13/spain.models/   
[v] World Health Organization: http://www.who.int/features/factfiles/obesity/en/
[vi] The term inbetweenie was used by Myla Dalbesio to describe herself and a lot of girls, who, in spite of having a healthy figure, do not fit in fashion business labels for models: “We’re not skinny enough to be straight-size, like the (US) size zero and size two girls, and we’re not big enough to be a plus size”. The Today Show 11 November 2014: https://www.youtube.com/watch?v=R7k18bh2vfE      
[vii] BBC News. Israel passes law banning use of underweight models. March 20, 2012: http://www.bbc.com/news/world-middle-east-17450275
[viii] The Model Alliance: http://modelalliance.org/
[ix]Balance Diversity Campaign: http://balancediversity.com/

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